LONG AGO, IT WAS suggested to me that solicitors shouldn't have ethical dilemmas because we should just know what is the right thing to do. Oh, were it that easy, you might say, constantly being pulled and tugged by competing interests and considerations. Confidentiality can be an essential part of any close relationship. For lawyers, not only is it an important ethical principle but by the doctrine of legal professional privilege the common law protects the confidentiality of certain information for the benefit of the client.
Some examples demonstrate how agonising the decision to conceal or to disclose can be.
It is important to recognise, while taking into account the practicalities of a situation, that you cannot stray from what is legally and ethically correct. Each matter must be carefully considered in terms of its own special set of facts. Two recent problems, discussed at the Ethics Committee's Scrambled Eggs and Ethics breakfast session at the NSW Legal Convention, brought home the problem and demonstrated how widely opinions can vary within the profession about the appropriate course of action. One matter involved the issue of employer solicitors imposing, or attempting to impose, unethical conduct on employed solicitors. Unfortunately, this is not an isolated problem.