Can impressions be confidential information?

Can insights and impressions we gain from an assessment of our client’s character, thinking and personality be confidential information?

To an extent it will depend on the time and scope of any retainer that we have with a client. Confidential information gained through a past client dealing does not require a direct relationship to the issues in the present engagement. Impressions can carry weight even in unrelated retainers. Our impressions are seen to have special importance in family and criminal matters.

In Magro v Magro¹ a wife applied for and was granted orders to restrain the husband’s solicitors from acting for him in contested property proceedings. 

The wife had originally engaged B to act for her. She subsequently discharged him and engaged new solicitors. These new solicitors were informed by the husband’s solicitor that B had accepted employment with them. The wife requested that the husband’s solicitors withdraw on the basis of a potential conflict. The husband’s solicitor declined to do so. The wife then retained new solicitors. The new solicitors repeated the wife’s request. The husband’s solicitor once again declined to withdraw. 

Before the Court, the husband’s solicitor argued that:

1. no breach of confidence was demonstrated by the wife. The wife was unable to identify any information in the husband’s affidavit material which came from the confidences she had resided in B;
2. the wife could not  specify what particular confidence imparted to B endangered her forensically in the proceedings; and
3. the Court could not be satisfied that “real mischief and real prejudice will in all human probability result if the solicitor is allowed to act”.

Rourke J said this with respect to the matter of impressions:

It is cogently argued by Mr Shaw in reliance upon the Rakusen formulation of principle that no breach of confidence has been demonstrated by the wife. The wife could not, for example, point to any affidavits sworn in the husband's case which contain material emanating from her confidences to Mr Byrne. Nor was the wife able to specify what particular confidence imparted to Mr Byrne endangers her forensically in these proceedings. Mr Shaw argues from this that the Court cannot be satisfied that "real mischief and real prejudice will in all human probability result if the solicitor is allowed to act." (to employ the words used by Cozens-Hardy M.R. in Rakusen.)²

The answer to this contention appears to me to lie in the peculiar quality of Family Law litigation to which reference was made by Bryson J. in D. & J. Constructions Pty. Limited. Particularly in a proceeding involving the wealth of issues identified above, it is reasonable to infer that Mr Byrne, by dint of his lengthy retainer, is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband. This might only consist of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate presented with those impressions. In these circumstances the appearance of justice will, to borrow Bryson J's words, not long "survive any general impression that lawyers can readily change sides.”³

In Westend Entertainment Centre Pty Ltd v Equity Trustees Ltd,⁴ Mandie J summarised the principles applicable by citing the unreported judgment of Gillard J in Yunghanns v Elfic Ltd:⁵

“The authorities establish that there are a number of factors which must be considered and weighed on an application such as the present, namely - 

1. the right of a solicitor to act for any client and the right of all members of the community to retain a solicitor of their own choice;
2. the right of a client to the maintenance of all confidential information obtained by the solicitor during the course of the retainer, which right continues until the client expressly or impliedly consents to the discharge of the obligation of confidence;
3. that as a general rule it is necessary to identify and establish that there was some confidential information provided (see Bricheno v. Thorp (1833) 2. Cr. and M. 183, 149 E.R. 725). But the degree of particularity of the confidential information must depend upon all the circumstances.  Often it cannot be identified for fear of disclosure.   In considering this factor it must be borne in mind that a solicitor makes notes, forms views and opinions of clients and observes things that the client may have forgotten or overlooked.   In some cases the circumstances of the retainer and the nature of the legal work will be sufficient to establish the nature of the confidential information.  In this regard the relationship between solicitor and client may be such that the solicitor learns a great deal about his client, his strengths, his weaknesses, his honesty or lack thereof, his reaction to crisis, pressure or tension, his attitude to litigation and settling cases and his tactics.   These are factors which I would call the 'getting to know you' factors.  The overall opinion formed by a solicitor of his client as a result of his contact may in the circumstances amount to confidential information that should not be disclosed or used against the client. 
4. That a solicitor must, consistent with his retainer, act in the best interest of his client which means not only exercising skill but also putting at his client’s disposal all relevant knowledge and if a solicitor is in a position where he is unable to reveal all his knowledge to a client he should not act for him.  See Spector v. Ageda (1973) 1 Ch. 30 at p.48.  This must be especially the position where the solicitor has acted for two clients in relation to one transaction and then thereafter acts for one against the other in relation to matters arising out of the same transaction."

But each case must depend on its own facts, the litigation and the former retainer. Such factors do not always carry considerable weight in all litigation but will be more likely have an impact in family or criminal law matters.

1 [1989] FLC 92-005.