Why Lawyer X was named

What happened

A Melbourne criminal defence barrister acted as a registered police informer while representing clients charged with serious offences.

It was alleged she provided information touching on more than 300 matters, contributing to arrests and convictions in a number of high profile prosecutions, including of people she personally represented.

Victoria Police sought to keep her identity suppressed, citing risk to her safety. The High Court declined to continue the suppression, and her name was published.

The two duties, and why they collided

Every lawyer in Australia owes a paramount duty to the court. That duty sits above the duty to the client, which is why a lawyer cannot mislead a court even on instructions.

Alongside it sits the duty to the client: to act in their interests, to avoid conflicts, and to keep their confidences.

Those duties are usually complementary. Here they were not merely in tension. One of them was abandoned entirely.

Passing privileged information about a client to the police prosecuting that client is not a difficult balancing exercise. It is a fundamental breach of duty, and it also creates the most direct conflict of interest imaginable.

What privilege actually protects

Legal professional privilege is not a courtesy extended to lawyers. It exists for the client and belongs to the client.

A person accused of an offence has to be able to tell their lawyer everything, including the parts that are damaging, without fear that it will reach the prosecution. If they cannot, they cannot be properly advised, and if they cannot be properly advised they cannot receive a fair trial.

The exceptions are narrow. Privilege does not protect communications made in furtherance of a crime or a fraud, and it yields where there is a risk of future physical harm. Neither was in play here.

When privilege is breached at scale, it is not only the individual clients who are harmed. Every person who has to decide whether to be candid with a lawyer is affected.

Why publication was ordered

The argument for suppression was real. There was a genuine risk to her safety and to that of her children.

Against that sat the consequence of concealment. Convictions obtained in matters where the accused’s own barrister had informed on them were potentially unsafe, and those people could not challenge their convictions without knowing what had occurred.

The Court weighed the two and concluded that the public interest in the administration of justice, and in the ability of affected people to seek redress, outweighed the risk.

There is a further dimension. The public expects police to uphold the law, and it expects that what you tell your lawyer stays with your lawyer. If confidence in the second proposition collapses, confidence in the criminal justice system collapses with it.

A number of convictions were subsequently challenged, and the Royal Commission made findings and recommendations about the management of human sources who are subject to legal obligations of confidentiality or privilege.

What it means for you

This case is an outlier, and it should not make anyone hesitate to speak frankly with their own lawyer.

What you tell us is privileged. We cannot act where there is a conflict, and we cannot act against your interests. Those are not preferences. They are professional obligations enforced by the Legal Profession Act 2007 (Qld) and the Australian Solicitors’ Conduct Rules.

The practical lesson runs the other way. Tell your lawyer everything, including what makes you look bad, because a defence built on partial instructions fails at the worst possible moment.