On occasions we may receive a request from another professional (such as psychologist or doctor) not to disclose to our client the contents of their report or opinion. This request is normally made when the professional is concerned that the disclosure of the information may be traumatic or will cause the client anxiety or affect their health or mental wellbeing.
Such a request needs to be treated with caution as it could easily create a tension between our duty to disclose material facts to our client and any assurance made to such a professional not to disclose.
Our duty is to act in the best interests of a client.1 This ethical responsibility is derived from the fiduciary obligations which came from the solicitor-client relationship. This relationship is one of utmost trust and confidence. The fiduciary obligation is to disclose to the client all material facts so that a client can make informed choices.2
In McKaskell v Benseman3 Jeffries J said:
A primary obligation of the fiduciary is to reveal all material information that comes into his possession concerned with his client’s affairs.
His Honour said the disclosure relates to material or essential information rather trifling and insignificant detail.
When we instruct professionals to provide reports or opinions, we should tell them that the report or opinion will be made available to the client. It may be necessary to say that we are under an obligation to reveal fully all information that might affect our client’s decision to do or not to do something, notwithstanding any perceived detrimental consequences that the information may cause. If a professional insists that the report or opinion be kept confidential to us as the solicitor then no assurances should be given to the professional until the informed consent of the client is given.
The client may be prepared to consent to less than full disclosure but the client must be able to appreciate the consequences (including not being able to fully instruct on the issues raised by the report or opinion).
No undertaking or assurance should be given to the provider of the report as to non-disclosure unless our client has agreed to this. A client could subsequently revoke this instruction so any undertaking or assurance to the provider of the report should be subject to the consent not being countermanded by the client. We are under a duty to consult with our client on all questions of doubt which do not fall within the express or implied discretion left to us and to keep our client informed to such an extent as any may be reasonably necessary.
Notwithstanding the request to not disclose we may be able to suggest to the professional to review the manner in which his/her opinions are expressed but not to change the substance of their opinions. We should always take great care in how we communicate with our clients. We should also call on the assistance of others if circumstances warrant.
Hurtful, traumatic or offensive comments ought to be disclosed. As Jeffries J said,
[A]s part of [our] practice, [we] have to convey not infrequently to clients unwelcome, bad and even at times, devastating information. The greatest care should always be taken on the occasion of such communication, but, nevertheless, it must be done.
The American Bar Association Model Rules of Professional Conduct (‘the Model Rules’) contains a rule as to communications between a lawyer and their client. The ASCR has no equivalent. A comparative rule is rule 7.1 ASCR which provides that we must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken. In a comment to the communications rule, the American Bar Association (ABA) has opined that there may be some circumstances that justify a lawyer in delaying telling a client information when the client ‘would be likely to react imprudently’ to an immediate communication (Comment 7 to rule 1.4 of the Model Rules). The example given is the withholding of a psychiatric diagnosis of a client when the examining psychiatrist believes disclosure would harm the client.
In such circumstances the client should be urged to discuss that matter directly with the psychiatrist and if necessary with a support person present. Notwithstanding the above comment by the ABA, it is important for us to remember that competent and diligent delivery of legal services (rule 4.1.3 ASCR) will require the client to have all necessary information so that the client can make informed choices (see rule 7.1 ASCR) It will only be in circumstances where substantial harm could be caused to the client or a third party that disclosure be deferred until appropriate arrangements can be made.
1 Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) r 4.1.1.
2 Brickenden v London Loan & Savings Co [1934] 3 DLR 465 (Thankerton LJ); ASCR r 7.1.
3 [1989] 3 NZLR 75, 87.