Legal Question in Legal Ethics in
Privilaged information.
This morning, I was convicted of a criminal offence in the Criminal Justice Courts of New South Wales Australia. Although I pleaded not guilty my conviction is not the issue here.
During the course of discussions prior to the court case, I informed my instructing solicitor and Barrister that I had a criminal record in England from 25+ years ago. In view of that my Barrister, with my agreement, decided not to use any character witnesses during my trial.
After the Jury retired to consider their verdict and before a verdict was given my Barrister, without my permission, informed the Queens Council for the prosecution that I had 'a mention on record in England'.
After I was convicted this morning, Queens Council for the prosecution stated on court records that they had no knowledge of any previous record of the accused (me) but had been informed that there was a record overseas by defence council and have contacted interpol to get details of it.
Has my Barrister breached his confidentiality requirements?
If so what redress, if any, do I have?
1 Answer from Attorneys
Re: Privilaged information.
Certainly in the US this would be a serious breach of confidentiality. While he may have a duty to inform the court or prosecutor if you falsely testified to a lack of such a record, there is (again, in the US) no duty to disclose such facts, and in fact a duty not to. If I were you, I would consult with a new lawyer (before your sentencing) and try to exclude reference to the prior conviction as having been obtained in voilation of attorney-client privilege, and I would consider filing a complaint with the Bar against this lawyer. I do not know if barristers in Australia can be held liable for malpractice (in the I believe they cannot), but if they can, I would look into a malpractice suit as well if you suffer adverse consequences as a result of the disclosure. Of course, the law as to lawyers' duties of confidentiality and privilege may differ in Australia, so please just consider what I say here as a theoretical discussion of what would/could be the result in the US. You should immediately get (new) legal advice on this issue from a (live, in person)NSW lawyer.
Daniel Press
Chung & Press, P.C.
6723 Whittier Ave., Suite 302
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