In addition to LPP, other obligations regulate the way that lawyers fulfil their role within the third arm of government. The former Chief Justice of the Supreme Court of Victoria, Honourable Marilyn Warren AC has explained that “[t]he foundation of a lawyer’s ethical obligation is the paramount duty owed to the court... It is the courts who enforce rights and protect the citizen against the state, who enforce the law on behalf of the state and who resolve disputes between citizens, and between citizens and the state... Without the lawyers to bring the cases before the courts, who would protect the citizen? Who would enforce the law?”10
There is also a general doctrine of confidential information grounded in equity whereby a person who is in circumstances of confidence and is provided with information of a confidential nature, is not permitted to make unauthorised use of that information to the detriment of the party communicating it.11 This obligation exists within the lawyer to client relationship to preserve “trust, candour and good faith in those relationships that constitute the fabric of society”.12
Underpinning all of this is the fact that lawyers owe an overarching fiduciary obligation to their clients, including to act in their best interests. In fact, the lawyer/client relationship is recognised as one of the few “status-based” fiduciary relationships, like trustee/beneficiary, agent/principal, director/company and partner/partner.
A fiduciary may not use their position of trust and confidence, or any information acquired in the performance of their role, to gain a profit or advantage for themselves or a third party, nor may they otherwise enter into dealings that conflict with their best interests duty, without first obtaining the fully informed consent of the person to whom they owe those duties.13 These duties underpin the obligations owed by all lawyers to their clients and, notwithstanding any LPP exceptions, continue to operate to protect clients. It is apparent that Lawyer X did not obtain her clients’ consent before delivering adverse information about them to the Victorian Police.