22 Feb SA Police confirm Lawyers have not been used as Informants
Ever since news broke of the ‘Lawyer X’ scandal in Victoria, everyone has wondered whether police in other States have used the same practice. Thankfully, the SA Police Commissioner confirmed on Wednesday that this corrupt and unethical practice has not been used in Police investigations in South Australia. https://www.abc.net.au/news/2019-02-20/sa-police-say-they-have-not-used-lawyers-informants-in-18-years/10827954
Lawyers at the SA Bar Association have been demanding answers from SAPOL since the scandal became public. https://www.adelaidenow.com.au/news/law-order/sas-barristers-urge-top-cop-to-rule-out-use-of-lawyers-as-informants/news-story/0ea5849dabbb9a64bee02d1a972f75ad
Lawyers are bound by “legal professional privilege”. This is a rule of law which protects communications between lawyers and their clients. This means that a lawyer cannot discuss their client’s instructions with any other party, including the police and prosecution, without the client’s permission.
It is not necessary that the client provides express permission for privilege to be waived, however most lawyers will (and should be) cautious about disclosing instructions unless express permission has been provided by a client.
For example, all communications from prisoners are monitored by the Department for Correctional Services. This means all phone calls made by a prisoner are recorded and listened too. Likewise, all mail posted and received by the prisoner is read and, at times, copied. Phone calls and mail to and from lawyers are not monitored.
However, if a prisoner discusses his/her legal instructions with a family member or friend over the phone or via mail, then it is presumed they have waived their privilege rights and the correspondence may be used by police and prosecution as evidence. It is therefore very important that legal instructions are only discussed in correspondence that is protected.
Lawyers have a duty to the Court and a duty to their clients to maintain and uphold the rule of law. Legal Professional Privilege is a fundamental principle and breaches of that principle are dealt with very seriously by the Legal Professional Conduct Commissioner. A proven breach can result in the lawyer involved being reprimanded, or in cases of a serious breach, have their practising certificate cancelled.
It is important to us at Mangan Ey & Associates, that our clients trust not only in our ability to represent them but also to uphold our professional duty to them. We too were shocked at the revelation that Victorian Police had used a Barrister as a police informant. This is an extremely unusual practice, not to mention, unethical.
We agree with the comments made by the High Court of Australia (http://classic.austlii.edu.au/au/cases/cth/HCA/2018/58.html) that the actions of the legal practitioner involved were fundamental and appalling breaches of her obligations as counsel to her clients and duties to the court.
Should you have any concerns resulting from the ‘Lawyer X’ scandal or require any advice, contact us and speak to one of our experienced lawyers.