Australia – Lawyers Weekly Article: Barristers’ email accounts searched by Victorian Bar Council in homophobia investigation

Australian Lawyers Weekly

The email accounts of Victorian barristers were searched by the Victorian Bar Council (VBC) in a homophobia investigation. The VBC has responded to the strong backlash of privacy concerns.

Searching software was used on the emails of thousands of Victorian barristers, as part of an investigation into an offensive notice posted in the lifts of a prominent law chamber, Owen Dixon Chambers East, on 10 August 2022.

The notice claimed to be from the VBC, and under its letterhead, referred to a committee seeking new members, Guardian Australia reported on 7 February.

The notice referred to an “LGBTQMS review committee”, with the letters “MS” referring to a homophobic slur that Lawyers Weekly has deemed inappropriate for publication.

The notice read in part: “Membership is open to all members of more than 10 years, be they junior or silk, who fall into at least one of the categories, thus, white, male heterosexuals will not be eligible to serve.”

The previous president of the VBC, Róisín Annesley KC, released a statement on 11 August, condemning the notice and saying the council was investigating.

Investigative action was undertaken by Barristers’ Chambers Limited (BCL), the host of email services used by Victorian Bar members.

The software was used to perform a keyword search for the term “LGBTQMS”, which returned a number of hits that held the search term.

“Most were immediately disregarded as irrelevant to the investigation with approximately 10 emails being of interest,” the VBC said in a statement.

“Of those 10 emails, only one was opened and read. That email was the subject of a notification to the Legal Services Commissioner.”

“No other information was obtained or retained from the process.”

Last week (7 February), the VBC notified its 2,200 members about the investigative action taken, and it stressed that no information about clients or cases had been accessed inappropriately, The Age reported on 7 February.

Victorian barristers and lawyers in other jurisdictions raised concerns.

“Lawyers in Victoria are calling for urgent clarification around the rules that allowed the Bar Council to access barristers’ private emails and could put client confidentiality at risk,” the Australian Lawyers Alliance (ALA) said in a statement.

“Most of us were completely unaware that the Bar Council has the right and the ability to search lawyers’ emails,” said Jeremy King, spokesperson for the Australian Lawyers Alliance.

“Our emails contain confidential and sensitive client information, and we are seriously troubled about this potential risk to our client’s privacy,” he said.

“In this instance, the Bar Council’s motivation was well-meaning, and we support their investigation into this instance of deplorable behaviour. Our concern is that we ensure our client’s privacy and privilege is protected going forward.

“All lawyers have a legal obligation to keep their client’s information safe and confidential. This type of secret search could put lawyers at risk of breaching commonwealth and state privacy laws.”

“If this type of search is allowable, then we need an urgent discussion around how, why and when a search of this nature is permissible and how we can ensure our client’s information is not put at risk.”

The VBC responded to the backlash and has begun updating its terms and conditions relating to the use of members’ email and privacy.

“These updated terms and conditions will reflect a shared and clear understanding between BCL and the Victorian Bar that the electronic environments used by members are to be maintained in the strictest confidence,” it said in a statement.

“Internal policies that relate to information management are also being reviewed to strengthen privacy protections.”

Source; Australian Lawyers Weekly