07_Confidentiality - Dispute Resolution and Legal Ethics 07...

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07 – Confidentiality Page 1 of 14 P ART VII C ONFIDENTIALITY 1 E THICAL F OUNDATIONS 1.1 Ethical Rationales for Confidentiality Issue: why, in general, ought a confident to maintain confidentiality? Individual autonomy mandates control over personal or other sensitive information Individuals should respect the secrets of their intimates A pledge of silence should be honoured Issue: why, in particular, ought lawyers to maintain the confidentiality of information communicated to them by clients? The public has a special interest in the confidentiality of their legal communications Lawyers’ role as adversarial advocate dictates that they comply with their clients’ wishes and act in their best interests The proper administration of justice depends on clients fully confiding in their lawyers without fear of unwanted disclosure The law of confidentiality implements the role morality of an adversarial advocate. Because the lawyer is viewed as a part of the client, they are obliged to maintain their confidences. Deane J identifies an overriding public interest in protecting confidentiality, observing that it is of great importance to the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law and to the administration of justice and law in that it advances and safeguards the availability of full and unreserved communication between the citizen and his or her lawyer and in that it is a precondition of the informed and competent representation of the interests of the ordinary person before the courts and tribunals of the land… a bulwark against tyranny and oppression… it is not to be sacrificed even to promote the search for justice or truth in the individual case extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or person with authority to require the giving of information or the production of documents or materials. 1 Several justifications are implicit in this analysis: Confidentiality protects the rights and freedoms of individuals by guaranteeing them private communication with their legal representative; Confidentiality upholds the administration of justice by allowing for informed and competent representation of clients’ true interests; Confidentiality protects against tyranny and oppression by preventing compelled disclosure to the government or other regulatory body; and The importance of confidentiality is so great that it should always triumph over justice in any given case. In other words, public confidence in the system is more important than truth or justice in individual cases. 1
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07_Confidentiality - Dispute Resolution and Legal Ethics 07...

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