Abstract
In her article, ‘The controversial case of Lawyer X: Should lawyers be prevented from acting as human sources?’, Elyse Methven considers the legal constraints on lawyers secretly informing to the police about their clients, and suggests that explicit constraints should be legislated to prevent a repeat of the ‘Lawyer X’ scandal.
Part one
Purpose: To understand the importance of legal privileges to the proper functioning of the legal system.
Background: In general, any person who has information that is relevant to the resolution of a legal dispute may be compelled to give evidence. However, there are a number of ‘privileges’ that allow a witness to refuse to give evidence. These privileges are granted to protect the legal system or other institutions considered important to society, and they vary in different places and at different times.
Instructions: Working individually or in small groups, research each of the following legal privileges. Produce a comparison table that includes a brief definition; the extent to which it currently applies in your jurisdiction; a summary of the benefits it provides to society; a summary of the drawbacks.
Privilege against self-incrimination (also called the right to silence); Spousal privilege; Shield laws for journalists; Parliamentary privilege; and Legal professional privilege (also called client legal privilege).
As a class, discuss which of the privileges you believe should be maintained (or introduced) in your jurisdiction, and what limits should be imposed on them.
Part two
Purpose: To consider the appropriate limits of legal professional privilege in a criminal law context.
Instructions:
Referring to the article, summarise the rule against disclosure and the exceptions to it. The article identifies a number of ways former Victorian barrister Nicola Gobbo – Lawyer X – informed to the police against her client, Mr Peters. Referring to this case (and others you may have identified from media reporting), do you believe Ms Gobbo breached her professional obligations? If so, do you believe her actions were morally justified? A common question asked of criminal defence lawyers by members of the public is how can they defend someone who has made a confession under the protection of legal professional privilege. What are the rules about how a lawyer in your jurisdiction must conduct themselves in that situation? Do you think these rules are morally balanced? Listen to ‘The Buried Bodies Case’ (available from the WNYC Radiolab website; note – it includes graphic descriptions of violent crimes). Thinking about the parents of a murdered girl, defence lawyer Frank Armani reflects: ‘What excuse is there for it, protecting the person that killed her. There’s no justification, you couldn’t justify it in my mind. I don’t expect them to accept it, but that’s the way it is.’ He says that in upholding legal professional privilege, he was required to put being a good lawyer above being a good person. Do you agree with this distinction? What do you think you would do, in his position? Is this different from the way Ms Gobbo behaved? Why, or why not?