Risk Watch: A new case on legal professional privilege and former

Waive goodbye? A new case on legal professional privilege and former clients

GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

Arecent decision of the Supreme Court of Queensland — R v McNicol [2022] QSC 67, Davis J, 29 April, 2022 - is of interest to practitioners in the common scenario where information is sought from a practitioner as to the affairs of a client. Sometimes this arises where an (ex)client has alleged negligence on the part of the practitioner which will give rise to issues concerning confidentiality and privilege.

THE FACTS

Mr McNicol was charged with a serious drug offence to which, after receiving legal advice, he pleaded guilty. Some months later he applied — through new legal advisors — to withdraw this plea, alleging that he had been pressured by his lawyers to plead guilty and that his plea was therefore not voluntary. The Crown opposed the application to set aside the plea and sought evidence from Mr McNicol’s former solicitors. The solicitors provided an affidavit without making enquiries as to whether privilege was waived.

The affidavit filed by Mr McNicol’s previous solicitor explained how the guilty plea came about and what advice was given to Mr McNicol by both him and counsel. Further, various notes of the conversations between Mr McNicol, the solicitor and counsel were exhibited to the affidavits.

THE JUDGMENT

Davis J said that the “conversations and the notes clearly attracted legal professional privilege” [26] and went on to summarise the (hopefully) well-known principles applicable to legal professional privilege [26]–[29]. His Honour further said that, whilst Mr McNicol’s solicitors did not disclose to the Crown what they described as Mr McNicol’s “trial instructions”, they otherwise “seem to have given no consideration to any issues concerning legal professional privilege” [30]. It appeared that the solicitor only raised the issue with the Crown, not Mr McNicol. Davis J said that such a course had no justification. Crucially, Davis J went on to say “There is a trend which I have noticed that lawyers who have formerly acted for a client in criminal proceedings regard privilege as waived in toto once the client swears an affidavit criticising their handling of the client’s matter. Invariably then, the lawyers collaborate with the prosecution and swear affidavits which prima facie breach the privilege which they assume has been waived. [32] Such a course is fraught with risk. If the lawyer’s judgment is wrong and privilege continues to enure for the benefit of the client, then the delivery of the affidavit to the prosecution in breach of the privilege constitutes a serious breach of professional obligation owed to the client.” [33]

Further, and helpfully, Davis J then proceeded to set out the approach which should be adopted by a lawyer who finds themself in the position of Mr McNicol’s previous lawyer, and it is worth setting out that guidance in full:

“The approach which should be adopted by a lawyer in the position which Mr Stitt found himself is that once approached by the prosecution:

assertions made by the client. That affidavit will no doubt contain privileged information; 2. send the affidavit to the former client’s current solicitors, not the prosecution, and seek instructions as to whether the client accepts that the privilege has been waived; 3. tell the prosecution that an affidavit has been prepared, that it contains privileged information and that instructions have been sought from the former client as to whether the privilege has been waived; 4. if the former client accepts that the privilege has been waived, then the affidavit can of course be delivered to the prosecution. If the instructions are that there is a dispute as to questions of privilege, then the prosecution should be informed of that and told that the lawyer will be in court on the hearing of the application with the affidavit and ready to give evidence and will abide any ruling of the court on the issue of privilege.” [35] 5. It was also said that if that procedure is adopted, then in the case of any dispute, the

Court rules on the privilege and the lawyers are protected by the Court’s ruling in relation to any disclosure that is subsequently made. In the end there was no dispute about privilege in

Mr McNicol’s case, however Davis J observed

“[t]hat though was as a result more of good luck than good management” [37].