Lucinda Byers appointed Chief

COMMENTARY

There are antecedent questions which arise here, – if the lawyer was no longer acting for the client, why was the lawyer contemplating giving an affidavit or making a statement to the Crown at all? What permitted the lawyer to do this? Was there anything that obliged the lawyer to do this? It seems clear from Davis J’s comments at para [30] in the McNicol judgment that his Honour was somewhat bemused by the lack of attention to these antecedent questions given by the lawyer involved.

Law Claims would encourage all practitioners who receive a request for information about an ex-client or the ex-client’s matter to treat these antecedent questions seriously.1 If you have not received either i. a request from the ex-client, ii. a request for information or an explanation from the Court; or iii. a subpoena then there is no warrant for you to be talking about your ex-client or their matter at all.

This of course is because, notwithstanding the desire to help and professional courtesy, the duty of confidentiality you owe to your client extends after the solicitor-client relationship has ended.

Further, only the client can waive their legal professional privilege and it is not up to you as their previous lawyer to make an assessment that what the client has subsequently done (in the McNicol case for example, making an application to set aside the plea) constitutes a waiver of that privilege. This applies even when the court is making the enquiry and where a subpoena has been issued. It is in this situation that the well known procedure of producing privileged documents in a sealed envelope, separate from other nonprivileged documents should be used.

Endnotes 1 It should be noted that in relation to questions about wills and will files, especially as regards testamentary capacity, particular issues arise.

An excellent resource which sets out the issues in this area is the paper Lawyers and Disputed

Wills: Confidentiality, Privilege and other issues by Graham Edmonds-Wilson QC (Law Society

Succession Law Conference 21 November 2019).

New appointment brings High Court and Royal Commission experience to major legal aid role

Lucinda Byers has been announced as the new Chief Legal Officer at the Legal Services Commission.

Ms Byers will oversee the Commission’s practitioner Panels that are made up of more than 650 lawyers, from over 220 SA law firms, who are approved to do legal aid cases. She will also manage the Commission’s in-house Criminal Law and Family Law practices.

Before taking up this role, Ms Byers held senior public sector legal roles including Special Counsel to the SA Crown Solicitor and Solicitor Assisting the Nuclear Fuel Cycle Royal Commission.

The appointment was announced by Legal Services Commission CEO Gabrielle Canny.

“Lucinda is an outstanding public lawyer who has specialised in providing high level advice to government over many years and has also represented SA in the High Court,” Ms Canny says. “She joins the Commission with a strong understanding of our services and priorities, having served on our board since 2019.”

Ms Byers studied law in Adelaide and California, and has a Master’s degree in International and Comparative Law from the University of Brussels. She also spent five years working for the UK Government.

“I am delighted to be part of a team that makes an enormous difference to the lives of so many South Australians,” Ms Byers says.

“The Legal Services Commission plays a fundamental role in our justice system and in society more broadly. The Commission delivers its services in collaboration with courts, government, lawyers and legal professional bodies – and I look forward to building on its relationships with all those parts of the justice system.” B

Lucinda Byers