Rule 9.2.5 permits (but does not compel) you to disclose confidential information for the purpose of preventing imminent serious physical harm to your client or to another person. 

General considerations

It is clear from the language of the exception that:

• the purpose of the disclosure must be to prevent harm from occurring 
• the harm must be imminent
• the imminent harm must be serious and it must be physical harm, and
• the harm may be harm to your client or another person

As the Law Council of Australia notes in its commentary on the professional conduct rules, unlike Rule 9.2.4, Rule 9.2.5 does not require the imminent serious physical harm to constitute a serious criminal offence.

Even though the situation may be very urgent, you need to use sound judgement when deciding to disclose under this exception. You should reflect deeply on whether the exception applies in the circumstances. The following questions may assist you to determine whether disclosure is permitted.

• is the potential harm serious? Why? 
• is it physical harm?
• is there a reasonable basis for thinking the harm is about to happen?  
• how likely it is that the harm will occur – do you have sufficiently detailed or compelling information to form an opinion that serious physical harm will occur?
• can the potential victim (your client or another person) be identified?
• are there other reasonable ways to prevent the harm that would not require disclosure of confidential information?
• would your disclosure prevent the imminent serious physical harm from occurring? 

Adapted from the Queensland Law Society’s (QLS) Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners and the Federation of Law Societies of Canada’s Commentary to the Model Code of Professional Conduct

This exception is also relevant where your client is threatening suicide or self-harm. When dealing with these kinds of situations, you should stay calm, demonstrate care and empathy, without taking on a counselling role. You should encourage your client to seek immediate support from a qualified professional (e.g. a psychologist, GP). However, you may determine that the circumstances justify your approaching a qualified professional or the police on your client’s behalf. The QLS has published a useful information sheet about responding to threats of imminent serious physical self-harm.

If you make a disclosure under this exception to the police, you should not continue to act for your client or provide information to authorities outside the initial report. For more guidance, see our Regulatory Guideline – Lawyer conduct in providing information to police. 

Ethical assistance

Any lawyer considering disclosing under this exception is encouraged to contact the Law Institute of Victoria’s ethics helpline, which is freely available to all Victorian lawyers for confidential ethical assistance. Email ethics@liv.asn.au or call 03 9607 9336. 

Related guidance

• Confidentiality and its exceptions
• Disclosure where there is express or implied consent
• Disclosure that is permitted or compelled by law
• Disclosure to seek advice on legal or ethical obligations
• Disclosure to avoid the probable commission of a serious criminal offence
• Disclosure to professional indemnity insurer
• Steps to take when considering making a disclosure

Rule 9.2.4 allows (but does not compel) you to disclose confidential information for the sole purpose of avoiding the probable (i.e. likely) commission of a serious criminal offence. 

The term ‘serious criminal offence’ is defined in the Law Council of Australia’s commentary on the professional conduct rules (LCA commentary) to mean an indictable offence against a law of the Commonwealth, a State, or a Territory (whether or not the offence may be dealt with summarily) or an offence against a law of a foreign country that would be an indictable offence if committed in Australia (whether or not the offence could be dealt with summarily if committed in Australia).

You cannot disclose information under this exception if it is covered by privilege, as privilege can only be waived by your client (Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26). However, if the client is using their contact with you or your duty of confidentiality to facilitate criminal action, this is not covered by privilege (Evidence Act 2008 (Vic) s 125(1)(a); Gino Dal Pont 2020 Lawyers’ Professional Responsibility, at [11.55]). 

Rule 9.2.3 allows you to disclose confidential information in a confidential setting, for the sole purpose of obtaining advice in connection with your legal or ethical obligations. 

You must be genuinely seeking assistance in the client’s interest, not engaging in ‘frivolous or promiscuous revelation’ of the confidential information or an opportunity to gossip (McKaskell v Benseman [1989] 3 NZLR 75, 88). Mixed purposes (e.g. financial reporting) will not fall under this exception.

Ethical assistance

The Law Institute of Victoria’s ethics helpline is a valuable source of high-quality and confidential ethics advice that is freely available to all Victorian lawyers. Email ethics@liv.asn.au or call 03 9607 9336.

Other sources of advice may be a trusted colleague or mentor. Remember to only disclose confidential information to the extent necessary to obtain the needed advice and de-identify the disclosure to discuss issues in a way that does not lead to identification of your client.

Related guidance

• Confidentiality and its exceptions
• Disclosure where there is express or implied consent
• Disclosure that is permitted or compelled by law
• Disclosure to avoid the probable commission of a serious criminal offence
• Disclosure to prevent imminent serious physical harm
• Disclosure to professional indemnity insurer
• Steps to take when considering making a disclosure

Rule 9.2.1 provides an exception to the duty of confidentiality where your client has expressly or impliedly authorised a disclosure. 

The Law Council of Australia’s commentary on the professional conduct rules (LCA commentary) notes that there is a degree of overlap between Rule 9.2.1 and rules allowing a solicitor to impart a client’s confidential information to colleagues in their law practice, other than where such information was clearly confided personally and exclusively to the solicitor (Rule 9.1.1) and that recognise that a solicitor may be either permitted or compelled by law to disclose a client’s confidential information (Rule 9.2.2). The LCA notes that: 

Rule 9.2.1 also encompasses situations where disclosure of client confidential information is necessarily incidental to the provision of the legal service sought by the client. The purpose of the express or implied authorisation exception in Rule 9.2.1 is to enable disclosure of information “precisely so that it can be used or disclosed for its purpose in the representation” and the duty of confidentiality “must be read subject to the lawyer’s authority to use and disclose information – albeit for the limited purpose of the retainer – where this is necessary for, or incidental to, the proper and normal conduct of the retainer.” 

A client may expressly authorise you to disclose confidential information in various circumstances, such as where a client has agreed to obtaining counsel’s advice, or instructed or agreed to the solicitor obtaining advice or assistance from another law practice. 

The LCA commentary notes that an example of implied authorisation includes a situation where a solicitor is retained to undertake a property conveyance. In this scenario, the solicitor would be considered to have implied authorisation to communicate such client information as is necessary to complete the conveyancing transaction to the other party and their solicitors, relevant financial institutions, and relevant government agencies. 

As a lawyer, you owe a duty of confidentiality to your clients not to disclose their confidential information. There are very limited exceptions to this general duty.

The duty of confidentiality is at the heart of the lawyer-client relationship. It is also fundamental to the effective operation of the justice system.

This guidance focuses on the exceptions to the duty of confidentiality. It has been designed to provide practical assistance to lawyers to help them assess when they can disclose confidential information. It also provides guidance on actions to be taken when a disclosure is made.

The duty of confidentiality is set out in rule 9 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the professional conduct rules). This includes certain exceptions to the duty which permit the disclosure of confidential information that are important to understand.

A decision to disclose confidential information in accordance with an exception listed in rule 9 should not be taken lightly. Inappropriate disclosure may harm your client’s interests, or result in your client losing their legal privilege. It could also result in disciplinary action against you, civil action against your firm (e.g. a claim for damages) and/or breach of state or federal privacy laws (where they apply to your practice).

More and more Victorians are feeling the impacts of the state’s growing housing crisis. That’s why the Victorian Legal Services Board and Commissioner is interested in addressing the associated legal problems. We asked consumer rights advocate and lawyer Gerard Brody to explore the legal sector’s role in improving housing security in Victoria.