R v DK [2023] NSWCCA 281
R v DK [2023] NSWCCA 281 · Read the judgment on AustLII
Catchwords: Ethics – costs – legal practitioners as recipients of subpoenas
In this decision, the CCA has looked at practitioners’ obligations when they receive a subpoena in relation to a former client, and confirmed that the District Court has no power to order costs to the recipient of a subpoena from the Crown.
Each of the six respondents was a legal practitioner who had acted for the respondent, DK, when he had been charged with sexual offences. DK was subsequently charged with offences of conduct intending to pervert the course of justice involving alleged attempts to recruit acquaintances to give false information to his solicitors in relation to the sexual offence charges. The DPP issued subpoenas to each of the respondent legal practitioners, seeking material relating to legal instructions taken by that practitioner from DK or the acquaintances. The practitioners appeared in the District Court in response to the subpoenas and variously applied either to set aside their subpoena or else applied for an order that the DPP should not be granted access to the documents produced. The practitioners’ claims were made on the basis of client legal privilege, pursuant to ss 118 and 119 of the Evidence Act 1995. The primary judge allowed the various applications (i.e. prevented the DPP from obtaining or accessing any of the documents) and – vitally to the appeals – ordered that the DPP pay the practitioners’ costs. The DPP appealed against the order for costs – it doesn’t seem like there was any appeal against the orders variously preventing the Director having access to the documents.
The matter came before the CCA (Simpson AJA, Yehia J agreeing with brief additional reasons, Wilson J agreeing with both).
The principal point from the judgment – that the District Court does not have power to order costs – is important, but less interesting for the purposes of a summary: There is no power in the District Court, whether express or implied, to order the Crown to power the costs incurred by the recipient of a subpoena issued at the request of the Crown (at [55]-[83]). Given the inability to order costs, Yehia J, in her brief additional reasons, observed that depending on the scope of what the DPP asks for, the costs in identifying and collating the documents sought may be significant. In those circumstances, the inability to claim ‘conduct money’ may cause an unfairness – particularly to sole practitioners and those in small law firms (at 87]).
More interesting are the observations about practitioner’s obligations if they face a subpoena relating to a client. Simpson AJA observed that the privilege afforded by the Evidence Act is against the use, in court proceedings, of confidential communications, the dominant purpose of which is the provision of legal services. That privilege is conferred upon the client, such that ss 118 and 119, for example, talk about the privilege being available ‘on objection by a client’. In this case there was evidence that the client, DK, had not waived privilege, but there was no evidence that any of the respondents was acting on behalf of, or with the instructions of, DK. For that reason, many of the notices of motion by the respondent practitioners may have been misconceived. It is perfectly proper for a legal practitioner who receives a subpoena to identify, when producing documents, that the material may be subject to privilege, and to notify the person who has the benefit of that privilege. But to go further and make a claim for privilege may go beyond the role of a practitioner who no longer acts for that client (at [15]-[16]). The ethical duty of a practitioner is sufficiently discharged by notifying the court, and the (former) client, on production of the documents, that they may be subject to a claim of client legal privilege. Thereafter, it is for the client, through their current legal advisors, to assert the claims (at [83]).
A rare example of a court inviting practitioners to do less.