Should a Lawyer disclose a Client’s private information after the Client dies?

Commentary as a result of current Christian Porter saga. This is not a discussion on the merits of the allegations against Christian Porter.

The short answer is NO.

Matthews Lawyers states that legal professional privilege dies upon the death of the Client. Accordingly, there is no lawful impediment. The deceased person would be appalled that their private privileged information, with their Lawyer was made public after their death. Matthews Lawyers believes that private privileged information it obtains from Clients, remains confidential and privileged, never to be disclosed.

Disclosing such information, does not generate confidence in the legal profession. A breach of privileged information is inappropriate. Matthews Lawyers would NEVER BREACH PRIVILEGE, under any circumstances while the Client lives. If the Client is deceased, Matthews Lawyers would require a court order to disclose privileged information, because the Solicitor Client relationship of privilege is sacrosanct in the legal profession.

All Accused have the right to due legal process. This country has the rule of law and it should not be disregarded. To do so, would be a slippery slope and result in arbitrary outcomes. Trial by public opinion is dangerous.

Are there other options for Victims apart from reporting to Police?

There are many reasons why Victims do not want to report. That decision is a personal one for the Victim and must be respected.

Victims of a sexual assault, can seek help from their Doctor, Counsellor/ Social Worker, or Psychologist/Psychiatrist. This enables survivors to commence the recovery process in a safe environment, where they can process their experiences, develop coping skills, tell their story and consider their different options. Victims can also speak with a trust friend, colleague or family member, if they choose.

If you go to Police you can make a Statement but say no action is to be taken. You can change your mind later and reactivate your complaint.

What is important is that – if comfortable – the Victim undergoes a forensic procedure to obtain evidence such as DNA that can be used in a prosecution when they are ready to proceed with their complaint in the criminal justice system. Such forensic evidence will be objective evidence that a sex act took place. Without objective forensic evidence, it will be harder to prove the complaint.

In the alternative, Victims can sue the alleged sex offender in civil court, where the burden of proof, is different, to that required, in criminal court. Beyond reasonable doubt is required in criminal law. The balance of probabilities is standard in the civil jurisdiction. In the criminal jurisdiction the Victim is represented by the Police/Director of Public Prosecutions. In the civil jurisdiction the Victim is prosecuting their own complaint.