Confidentiality and privilege

Is the information I tell my lawyer private?   Can my former partner publish details about our family law matter online?

Confidentiality and privilege

It is common for clients to be concerned that the information and instructions they provide to their lawyers, cannot be passed on to their former partner.

Communications between clients and lawyers are confidential and subject to legal professional privilege. Privilege applies to all legal communication made for the dominant purpose of giving or receiving legal advice. This means that instructions given from a client to their lawyer and advice provided from a lawyer to their client is private, confidential and privileged.

Confidentiality and privilege exists unless waived. Once confidentiality is lost, privilege is also lost. There are two ways for privileged to be waived:

  • Express waiver – this involves the intentional disclosure of a document or communication that contains privileged material; and
  • Implied waiver – this occurs when the holder of the privilege does something that is inconsistent with the maintenance of the confidentiality that the privilege protects. Implied waiver can occur even if the holder did not intend to waive privilege.

Parties involved in family law disputes ought to be careful about unintentionally waiving privilege through implied waiver, by disclosing legal advice that they have received to their former spouse or partner. For example, if one party tells the other “my solicitor has told me that….”, it is possible that they have waived privilege about the advice they have received.

It is important that clients take care in communicating with their former partner, lawyer or other advisor to avoid inadvertently waiving privilege. To reduce the risk of one party’s privileged communication being accessed by the other, we recommend that clients update their email passwords and account settings. If a shared device has been used throughout the relationship, it may also be prudent to create a new email address.

Publication of family law proceedings

Clients are also often concerned about details of their family law matters being published in a public forum.

Section 121 of the Family Law Act 1975 (Cth) imposes a widespread prohibition on the publication of any part of family law proceedings. The legislation makes it unlawful (unless any exceptions apply) to publish information that identifies any person who is a party to family law proceedings or who is connected to those proceedings. The prohibition applies to all persons generally and is not limited to parties engaged in family law proceedings.

Some exceptions to the prohibition include the printing of a court list, transcript of the proceedings, judgment or report intended primarily for the use of members of the legal or medical profession. In the case of a report being published, it is standard that the parties are given a pseudonym so as to maintain privacy.

It is important for clients to understand that the definition of publication, for the purposes of the legislation, includes publication in a newspaper or periodical, on the radio or television or by electronic means. This includes publication on social media.

A person who acts in contravention of section 121 may be guilty of an offence. If found guilty and convicted, the person may be imprisoned for a period not exceeding one year or be found to be in contempt of court.

It is strongly recommended that parties engaged in family law proceedings (and their family members or friends) do not use social media to make any posts about the proceedings, including posts that identify information about or other parties involved in the proceedings. Aside from the legal consequences of breaching section 121, it is possible that the contravention will affect the final outcome of the matter (i.e. the Court may take a dim view of the party in breach of section 121).

We are here to help you. Should you require any further advice about confidentiality, privilege or the publication of information relating to family law matters,  please contact one of our team members on 03 9070 9839 or info@sagefamilylawyers.com.au

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