Episode 15: Legal privilege and integrated legal assistance services (podcast transcript)

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Eve Gallagher, VLRC: Old Law, New Law, a podcast by the Victorian Law Reform Commission.

Suzie, Women’s Legal Service Victoria: People come in as a whole person with many different support needs and sometimes those support needs really take precedence.

Hon. Tony North, VLRC: Legal privilege is a very old principle of the law, and what it says is that what you tell your lawyer is completely protected from disclosure unless you decide that you want it disclosed.

Jessica, CLC Lawyer: The father had been highly abusive and controlling of the mother over many years, and the father then subpoenaed the records of our entire organisation.

Marika, Eastern Community Legal Centre: People and groups experiencing multiple intersectional disadvantage were widely shown to be at increased risk of experiencing a range of legal and related problems. And they were the people that also experienced the greatest adverse consequences when their legal needs were unmet. So there’s a real opportunity here, we think, that by reviewing this issue, we’ll be able to increase the accessibility of legal services for people who need them the most.

Eve Gallagher, VLRC: Welcome to the latest episode of Old Law, New Law. My name is Eve Gallagher, and today I’m going to talk you through the Victorian Law Reform Commission’s inquiry into legal privilege and integrated legal assistance services. So this inquiry is about the fundamental right of disadvantaged people to keep their legal information private when they’re accessing free, legal and social services. In addition to myself and the Commission Chair, we have asked three guests to help us explain some of the more important issues we’re grappling with. First up today, we’re going to hear from Marika, the Director of Integrated Practice at Eastern Community Legal Centre. Community legal centres play a critical role in enhancing access to justice by providing free legal services to some of our most disadvantaged community members. And Eastern Community Legal Centre has a long history of providing free legal and social services in Melbourne’s East. I asked Marika to explain what integrated legal assistance services are and why they provide them.

Marika, Eastern Community Legal Centre: Integrated legal assistance services or multidisciplinary practices means that lawyers are working collaboratively with professionals from other disciplines such as social workers or advocates or financial counsellors or health professionals. The reason why we provide them to clients is quite simply because we think that it’s a benefit to the client to be able to receive integrated holistic support.

Eve Gallagher, VLRC: An example of the kinds of services we’re talking about is MABELS, a health justice partnership run by Eastern Community Legal Centre, Boorndawan William Aboriginal Healing Service, and local council. Under this program, lawyers, family violence advocates, and Aboriginal practitioners are embedded in a community health setting. This is Marika, explaining how this works for clients.

Marika, Eastern Community Legal Centre: So I guess a typical client who would access that program is a woman who’s just had the birth of their first child and they’re starting to notice some really controlling behaviours from their partner and it might be starting to escalate and they might be confused about what it means and how to navigate that safely. What we hear from women is that it can be really helpful to talk about intervention orders, family law, child protection, tenancy, debt, or other family violence issues. And you could imagine that for a woman who has just had a child, they’re quite complex legal processes and topics to be able to explore.

Eve Gallagher, VLRC: I also spoke with Susie, the Integrated Services Program Manager at Women’s Legal Service Victoria. She too identified a range of benefits to the integrated services they provide.

Suzie, Women’s Legal Service Victoria: There’s so many benefits. Firstly, people come in as a whole person with many different support needs. And sometimes those support needs really take precedence because they’re the stresses that are really impacting on people’s lives. So to give you kind of an example, we might be working with a client that has like really bad debt issues. And because of those debt issues, they’re unable to make their rental payment. And possible eviction means that they could return to a perpetrator who’s really unsafe. They’re going to have to take their kids out of school. There’s a whole lot of kind of ramifications that might go on for that client. So being able support them address their kind of most important needs at that time, frees them up to be able to get to their legal work. Like the analogy of being on the plane, you kind of got to get that mask down and stabilise things first before you can get into some of the other work that really needs to take place.

Eve Gallagher, VLRC: And what do you mean by that exactly?

Suzie, Women’s Legal Service Victoria: Sometimes, you know, legal processes can be disempowering, traumatizing, and really stressful for clients. So a social work might sit in a client appointment, help kind of our client process the information, support them to understand legal jargon, potentially call for breaks that a lawyer may not be aware of, ’cause they might be sensing that a client’s having a bit of a trauma response to the situation that they’re in. They can kind of follow up after a meeting and check, you know, do you know what the next steps are? And sometimes even just provide really practical support, for example, safety planning before someone goes to court, or getting an Uber for someone to get to court because they are a long way away, or even getting childcare. Some of those practical considerations really make a world of difference, free people up to make informed decisions, but also free them up to be able to really participate in the legal systems that they’re in.

Eve Gallagher, VLRC: According to Susie, staff also benefit from integrated services, including by sharing the stress and emotional burden that comes with helping people who have often experienced trauma.

Suzie, Women’s Legal Service Victoria: I think from a staff perspective, it really does share that burden of risk amongst a number of people. Often lawyers are really concerned about risk to clients, but with other kind of disciplines that they’re working with, they get to kind of properly risk assess it, so it can be so reassuring for a lawyer to start kind to understanding actually this woman’s been managing her risk really well herself. She’s the expert and she’s got some protective factors and that’s good enough for now. And I think that really helps with vicarious trauma as well, like having a team approach and being able to manage that risk – Yeah, it can really help lawyers who are dealing with incredibly stressful and difficult situations. I think there’s been a lot of the kind of common practice in social sciences are being adopted now within legal settings. So for example, trauma-informed work, lived experience, intersectionality. And so these things that kind of may be newer concepts to the legal world, but have actually been in the social sciences for many years. So I think that infiltration and this kind of sharing of disciplines actually creates a whole new practice that’s really terrific for everyone involved.

Eve Gallagher, VLRC: So you’ve spoken about the benefits to clients and staff. Are there benefits to the system more broadly?

Suzie, Women’s Legal Service Victoria: I think workers that aren’t lawyers can often kind of identify and demonstrate through their casework the real life consequences that happen in their work, and can really collaborate with lawyers to advocate for change. So a good example is our financial counselling work has really highlighted within the infringements working group that women with fines are at risk of criminalisation and being imprisoned. So that’s kind of a really good example of like, you can imagine the inherent disadvantage for women who experience family violence. So the fines are a result of that. And then as a result, they could potentially be criminalised. So being able to highlight that in case examples in their casework, bring it to a working group, work with other CLCs and other systems to kind of make change, is really, really crucial.

Eve Gallagher, VLRC: So clearly community legal centres are providing much needed assistance to some of our most vulnerable community members when they need it most. And this is also true of legal aid and pro bono lawyers, whose legal services also fall within the scope of our inquiry. However, this type of assistance may also put at risk the ability of clients to keep their legal information private. To understand why, you need to understand the law on legal privilege. This is our Chair, the Honourable Anthony North KC.

Hon. Tony North, VLRC: Well legal privilege is a very old principle of the law and what it says is that what you tell your lawyer is completely protected from disclosure unless you decide that you want it disclosed. And the reason for that is that it’s said to encourage people to be completely frank and thereby allow the lawyer to give advice about the entirety of the client’s issues, without having anything kept back, be they good things or bad things. And in order for the privilege to apply, there is some quite strict conditions. Firstly, the communication has to be of a confidential nature, and then the dominant purpose for providing the information must be either to obtain legal advice or to engage in litigation.

Eve Gallagher, VLRC: And why is legal privilege challenging for integrated service providers?

Hon. Tony North, VLRC: The reason why legal privilege is challenging for integrated legal assistance service providers is because of the nature of the service provided. If, let us say, a woman goes in complaining about a family violence issue and is seeking legal advice, and it’s obvious that she also needs advice about housing, and she speaks in the same room to a lawyer and also someone who specialises in providing housing – a social worker – then there’s an argument about whether her purpose in seeking the advice is legal advice or is it housing advice. And because it’s not easy to determine in that situation what the dominant purpose is, there is a threat that the legal privilege won’t apply because she has spoken, seeking advice, not only to a lawyer but to another health practitioner, be it a social worker or any other expert who is needed to cater for her situation.

Eve Gallagher, VLRC: To understand what this means in practice, let’s hear from Marika again.

Marika, Eastern Community Legal Centre: We know that when a woman’s accessing a legal service, it’s clear that she’s accessing a legal service for legal advice, but I guess where we find it trickier to navigate is even within that legal advice appointment, the purpose might just shift at different stages within one appointment. So it could be very much talking about intervention order and as the client is communicating different information, it may become really apparent in that appointment that her immediate safety is more at risk than the lawyer may have realised. And with the family violence advocate in the room, it may be important to be able to address the immediate safety concerns as part of that appointment, or if a client becomes really distressed during an appointment and may disclose ideas of suicide, then really being able to respond to the client’s distress. And often that’s so interconnected with the legal process and the legal options, that to support it or remain engaged with a process, it often does mean that you’re or perhaps at some points responding to her mental health within that legal appointment. I guess the challenge is when you have another practitioner in the room and the same information is being shared, the lack of clarity around the dominant purpose can be really hard for practitioners to navigate.

Eve Gallagher, VLRC: There are two main ways legal and social services tend to be integrated in Victoria. The client may be told they can access legal and social services separately within the same organisation or partnership. In which case, as long as strict information barriers are maintained by the staff involved, the client should be able to rely on legal privilege to keep their legal information private. In our consultation paper, we’ve called these kinds of services loosely integrated legal assistance services. The other option they give to the client is to access fully or closely integrated services, which is when lawyers and social service providers meet together in the one room and freely share information, allowing them to tackle the client’s related problems together. If clients access these services, though, they are often asked to acknowledge they may be waiving or jeopardising legal privilege. And although it makes sense legally and ethically for community legal centres to prioritise the informed consent of their clients when deciding which services to provide, this is also a really difficult choice for clients to make. This is how Justice North describes it.

Hon. Tony North, VLRC: Well, a client does face a disadvantage, a catch-22, when it comes to accessing free legal advice and help, because if they seek to rely on their legal privilege and don’t want it compromised, then they’re restricted to talking only to the lawyer about law, about their legal advice, and they can’t really tell their whole story to the other people in the wraparound service, doctors or whomever it is that they really need. If they talk about everything, the danger is that they lose legal privilege. If they don’t talk about everything, then they lose the wraparound service. So that’s the catch-22, and it’s a really invidious position, and it’s brought about by the fact that the law of legal privilege hasn’t kept pace with the change of integrated services – the notion of wraparound services of treating the whole person rather than just the legal advice seeking person – hasn’t really been addressed by this area of the law.

Eve Gallagher, VLRC: To understand how risky this choice is for clients accessing integrated legal assistance services, I spoke to Jessica, a community lawyer whose client’s legal and counselling records were subpoenaed by her violent ex-husband. Jessica’s organisation provides loosely integrated legal assistance services, which means that the client only has to engage with one organisation, but there are strict information barriers between the lawyers and social workers within that organisation in order to preserve privilege.

Jessica, CLC Lawyer: We had previously acted for a mother in a different but related matter, and we had also referred that client to our social work support service for counselling and support. Around a year after our matter with the mother had finalised, she was party to family law proceedings. The father had been highly abusive and controlling of the mother over many years, a fact which had been relevant in the matter that we assisted the mother with, and was also then relevant in the family law proceedings. And the father then subpoenaed the records of our entire organisation. So we responded to the subpoena and explained the nature of our organisation, that we’re an umbrella organisation, multiple separate services, and that two of those services held documents related to the subpoena. We objected to the release of either group of those documents. We argued that the records of the social work service were protected under the, then-new, protected confidences protections, and that our CLC records were protected by legal professional privilege. We provided evidence in support of the claim of legal privilege in the form of our accreditation as a community legal centre, our funding agreement, our organisational structure, our information barrier policy. The mother was unrepresented in those proceedings because she couldn’t afford a lawyer. And so we felt a particular obligation to do what we could to protect the mother from what we saw was a continuation of the father’s abusive behaviour. And that pattern included multiple and ongoing efforts to undermine the mother’s mental health and parenting ability, and then to argue that she shouldn’t have care of the child on the basis of that impaired ability. At the first hearing, the court determined that the social work documents were not covered by the new protected confidences protections and ordered us to make them available to the father’s lawyers. The court held that the mother’s distress at that could be mitigated by restricting access to his lawyers only and not to him personally. And then we saw that the court exempt the CLC documents from disclosure on the basis of legal privilege. We did this in the first hearing, but the court declined to do so. The court ordered that we produce all the documents to which we argued that the privilege applied, which is the client’s entire file, so that the mother who was, remember, unrepresented, highly vulnerable, could review and determine for herself whether she wished to claim privilege over those documents. And then the legal privilege question was set down for a further hearing. So during the second hearing, despite all of the evidence that we’d already provided regarding our structure and our information barriers, the father’s lawyer argued that the information barriers might not be secure, in fact, that the legal records might be mixed up with non-legal records. The lawyer also argued that the mother had waived privilege over all the documents simply by signing our client agreement, which permits us to disclose confidential information if required by a court order. And also because we had prepared an affidavit for the mother, which had then been filed in court. And so the father was arguing that also constituted waiver of privilege over her entire file. Ultimately, the court didn’t accept these arguments, and it did find that the documents were privileged. So I suppose we got where we needed to be in the end, but it certainly wasn’t the quick and easy process that I had expected it to be. Actually, I was quite shocked by the process.

Eve Gallagher, VLRC: So has this experience changed the way your organisation provides services?

Jessica, CLC Lawyer: For several years, I have actually been thinking about moving towards a more closely integrated model – having lawyers and social workers meet jointly with some clients, sharing information more freely, working as a more coordinated team around a client. We could see real benefits in that approach. Obviously, the less repetition for clients, better informed legal advice and social work support, more holistic support generally. But this experience has changed my thinking on that quite a lot. Watching how aggressively and how close to successfully, it feels, the father was able to come to obtaining the legal file, in addition to the social work records, even with our very strong information barriers and separate organisational structure in place, made it very clear just what the risk to that integrated service model can be. It was bad enough that all of the personal sensitive information that our client had shared with the social work support service had ended up in the hands of an abusive ex-partner. But it seems if we’d been more integrated, then the legal file would have been handed over as well.

Eve Gallagher, VLRC: The critical question for us now at the Commission is what we can do about this problem.

Hon. Tony North, VLRC: We’ve done a lot of thinking already and we’ve come up with these two possibilities – but that’s not to say that after consultations there might not be some you know really good other solutions. So, the one solution relates to what we call loosely integrated practices and the idea here is legal privilege stays in place but there’s another privilege that sits side by side for those other health professionals or wraparound service providers who will deal with the client. Sort of more to the centre of our consideration is the situation of fully integrated legal assistance services and there what we’re suggesting is that everybody would like the lawyers be subject to this legal privilege and a client who consults an integrated practice would get a benefit of a privilege which would bind social workers, doctors, and, you know, housing advisors.

Eve Gallagher, VLRC: So if you provide or have access to integrated legal assistance services, or if you happen to be an expert in legal privilege who has some time on your hands, please get in touch and let us know what you think by the 3rd of August. You can find the consultation paper on our website with the seven key questions we’re seeking feedback on, including questions about the Commission’s proposed options for reform. Now before I leave you with some final words of wisdom from our Chair, Justice North, I just want to thank Marika, Susie and Jessica for helping me make the really important but difficult issues this inquiry is tackling come to life.

Hon. Tony North, VLRC: It is essential for community members to participate in law reform inquiries because they’re the ones who have the experience on the ground of the problems and they’re often the best source of solutions as well. We listen, and then we assess what we hear. To some extent, we can craft solutions, but in the end, it’s really the people that talk to us that will guide us to outcomes that work for them.

Eve Gallagher, VLRC: This has been an episode of Old Law, New Law, a podcast by the Victorian Law Reform Commission. We acknowledge the traditional owners of country across Victoria and pay our respects to their history, culture and elders, past and present.