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Some tips for talking to the media (or not)

18 April 2019 - By Jonathan Sutton

Lawyers are well aware that the media will often seek comment concerning cases of public interest. Indeed, comments made by lawyers in the course of public hearings are often reported in the nation’s newspapers. However, lawyers need to be careful not to breach any of their professional obligations when providing comments outside the courtroom. While fronting media questions may sometimes form part of a lawyer’s role, when deciding whether or not to comment lawyers must be mindful of their duties to their clients and their overriding obligations as officers of the High Court.

The four fundamental obligations of lawyers as set out in section 4 of the Lawyers and Conveyancers Act 2006 are:

a)            To uphold the rule of law and facilitate the administration of justice;

b)            To be independent in providing regulated services to his or her clients;

c)            To act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; and

d)            To protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.

Duties to clients

The making of public comments by a lawyer in relation to a matter in which that lawyer has been engaged necessarily raises issues relating to the lawyer’s fiduciary duties of loyalty, care and confidentiality. As outlined above, one of the fundamental obligations a lawyer owes is to act in accordance with all fiduciary duties owed to a client. The fiduciary duties of lawyers are codified, in part, by rules 5.1 and 6 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rule 2008:

5.1          The relationship between a lawyer and a client is one of confidence and trust that must never be abused.

6              In acting for a client, a lawyer must, within the bounds of the law and these rules, protect and promote the interests of the client to the exclusion of the interests of third parties.

The duty of confidence is set out in detail by Chapter 8 of the Rules. In brief, a lawyer’s duty of confidence: extends to all information gained in the course of the professional relationship concerning the client, the retainer and the client’s business and affairs (r 8); covers information that is widely known or is a matter of public record (see footnote to r 8); commences from the time the information was disclosed and continues indefinitely even after the person ceases to be a client (r 8.1).

The scope of information covered by a lawyer’s duty of confidence was discussed by the High Court in GBR Investments Ltd v Keung [2010] BCL 315. In that case, the High Court cited the following comments from the Supreme Court of Victoria in Yunghanns v Elfic Ltd (unreported):

“…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.”

This wide approach to the scope of confidential information has subsequently been adopted in New Zealand by the Legal Complaints Review Officer (see for example LCRO 150/2017). In some circumstances, the fact a lawyer acts for someone will itself be a confidential matter (The Ethical Lawyer, R Scragg, 2018).

The circumstances in which a lawyer may disclose confidential information are set out in r 8.4 of the Rules and include: where the client has consented to disclosure and where disclosure is necessary to defend the lawyer from allegations made by a client. Any disclosure permitted by rule 8.4 should be limited to the extent that is required for the permitted reason (r 8.5).

As can be drawn from the rules and the case law, a lawyer making public comments without their client’s consent walks a very fine line. This is especially the case when those comments adversely affect a client, or former client’s, interests - as stated by Lord Hutton in Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 ACC 222:

“[Confidentiality] is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or cause any use to be made of it by others otherwise than for his benefit.”

Duties as an officer of the court

At the outset it is noted that lawyers’ duties to their clients are subject to their duties as an officer of the court. When a lawyer is unable to discharge their duties to both the court and the client, they ought to terminate their retainer and give the client reasonable assistance to find a new lawyer (see rr 4.2.1 and 4.2.4 of the Rules).

The obligation to uphold the rule of law is further expounded by Chapter 2 of the Rules. Rules 2, 2.1 and 2.2 provide:

2              A lawyer is obliged to uphold the rule of law and to facilitate the administration of justice.

2.1          The overriding duty of a lawyer is as an officer of the court.

2.2          A lawyer must not attempt to obstruct, prevent, pervert, or defeat the course of justice.

Comments made in a public forum, or subsequently published in such a forum, can have an adverse effect on the administration of justice. For example, in Solicitor-General v Wellington Newspapers [1994] 1 NZLR 45, the High Court found that newspaper publication of the details of prior criminal conduct of an individual charged with assaulting a police officer interfered with the accused’s right to a fair trial and amounted to contempt of court. Of particular relevance are the High Court’s comments that:

“To establish contempt [the Solicitor General] has to show that as a matter of practical reality the actions of the particular respondent caused a real risk, as distinct from a remote possibility, of interference with the administration of justice; here, specifically, interference with a fair trial…

… In cases of the present kind it is not the dignity of the judiciary that is involved or offended, the point is the preservation of an impartial and effective system of justice. The particular facet in issue here is to maintain the right of accused persons to a trial before a jury free of bias and preconception whose decision will be based only upon the facts that have been proved in evidence adduced in the course of the trial in accordance with the recognised rules and procedures of Courts of law.”

In subsequent cases, the New Zealand courts have recognised that the right of freedom of expression supports concurrent reporting of events in the criminal justice process and that this interest must be taken into account along with the right of an accused person to a fair and public hearing by an independent court (Siemer v Solicitor General [2013] 3 NZLR 441).

However, unlike the media (which has at its core principles of freedom of expression and public interest) and other members of the general public, lawyers are officers of the court and therefore have overriding obligations to uphold the rule of law and to facilitate the administration of justice. It follows that lawyers can expect to be held to a higher standard when commenting on matters before the courts – especially if those comments have any bearing on findings of fact yet to be made by the courts.

Exercise caution before comment

Not all comments made in the media will breach a lawyer’s professional obligations. Indeed, lawyers’ comments can play a crucial role in educating the public on important and/or complex legal issues and in advancing public debate. However, when providing comment, lawyers must be mindful of their fiduciary duties of confidence, care and loyalty and their obligations as officers of the High Court. This is especially important when commenting on matters either currently before the courts or in which the lawyer has acted. Failure to adhere to these duties can interfere with the administration of justice and undermine public faith in the legal profession.

Jonathan Sutton is a Legal Standards Officer with the New Zealand Law Society.

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Last updated on the 18th April 2019