Can information in the public domain still be confidential?

Practitioners sometimes believe that if information about a client can be publicly accessed, that information is no longer confidential to the client. This is not the case.

Information that is in the public domain may still be confidential to the client and repetition or confirmation of that information may give that information further credibility that it might not have otherwise.¹ In Tampoe² the solicitor concerned contended that the information that was disclosed was in the public domain and therefore he did not commit an offence in disclosing it. However, it was held that the information had been communicated by the client on a confidential basis and the practitioner was therefore in breach when this information was disclosed on national television.³

Determining whether information is in the public domain is not always clear. For example, information is not necessarily ‘public’ or ‘common’ knowledge just because it is 'publicly available'. As Justice Gaudron noted, ‘There is a question whether an obligation of confidence is extinguished because of subsequent publication to the world at large … it is sometimes said that the information has passed into the public domain. The question that then arises is, in essence, whether the information has lost its confidential quality. And as already pointed out, that is largely a question of fact.’ There was some discussion in that case that transcripts tendered in the public proceedings of the Royal Commission do not necessarily lose their quality of confidence.⁴

There are further issues to consider:

• Information in the public domain may not be entirely accurate. If a practitioner comments on such information, they may give further weight to the information or if the practitioner corrects the information in the public domain without the client’s consent, there is considerable danger that they have breached their client’s confidence.⁵
• The division between what is public and what remains private is not always easy to ascertain with accuracy and the practitioner could inadvertently disclose information that should remain confidential.
• The practitioner’s duty of confidentiality is grounded in fostering trust with the client which could be greatly eroded if such confidential information is disclosed by the practitioner irrespective of whether it is in the public domain.
• Impressions of the client may amount to confidential information.⁶

1 Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (at 1 June 2012) 30.

2 Legal Services Commissioner v Tampoe [2009] LPT 14.

3 Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (at 1 June 2012) 30.