Off the Record, or off your rocker?
The use of an undefined term is fraught with peril.
“Can we have an off-the-record conversation?”
That request is often heard in practice, especially in litigation, and a prudent practitioner’s response
should always be the same: ‘no’. Not because it puts your opponent off-balance, or confers some vital
tactical advantage, but because there is no such thing.
This is because the phrase ‘off-the-record’ has no meaning as determined by court or statute, which
means that it can encompass anything or nothing and, crucially, it can also mean different things to
different people in the same conversation. In the absence of guidance from the courts, ascertaining the
meaning of the phrase, ‘off-the-record’ after the conversation in question has occurred becomes a difficult
and perilous exercise, and one to be avoided if at all possible.
What must be strictly resisted is any temptation to regard ‘off-the-record’ as equivalent to without
prejudice; they are likely to be regarded as different things by a court of law (should things come to that
pass). This is due to simple logic: if a practitioner seeks to enter without prejudice negotiations, he or she
can simply make that request; by electing to use a different term, there is a strong presumption that
something other than without prejudice negotiations were contemplated by the parties. A practitioner who
involves a client in a process of which the parameters are undefined invites calamity and may well be
negligent.
In addition to the legal ambiguities noted above, the concept of an ‘off-the-record’ conversation raises
several ethical issues which also make the process problematic. For a start, if a practitioner is invited to
participate in ‘off-the-record’ discussions in the absence of his or her client, how are instructions to be
obtained in relation to those discussions? A solicitor is bound to follow a client’s lawful, proper
1
instructions and is also obliged to provide to the client all knowledge the solicitor has which is pertinent to
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the client’s case. It is impossible to reconcile these duties with the idea of a conversation which reveals
to a solicitor information relevant to the client’s case, but which cannot be revealed to the client.
Although it should go without saying, it is worth noting that any practitioner seeking to use the ambiguity
of the phrase ‘off-the-record’ to make use of information or admissions made in the relevant conversation
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will fail to discharge the duty to act honestly and will be acting contrary to their duty to the court and the
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administration of justice. Any solicitor engaging in this conduct can be certain that disciplinary
proceedings will ensue, and that any court or tribunal hearing those proceedings will likely be disinclined
to mercy.
The bottom line is that solicitors seeking to enter into negotiations to resolve a dispute should make use
of without prejudice processes which have well understood thoroughly defined and long accepted
meanings and limitations. ‘Off-the-record’ conversations are at best unchartered waters and at worst an
invitation to disaster; prudent practitioners will keep ‘off-the-record’ conversations off the agenda.
Shane Budden
Ethics Solicitor
14 October 2016
The author gratefully acknowledges the assistance of Adriana Tate, Ethics Clerk, in the preparation of this note.
1Australian
Solicitors Conduct Rules 2012 rules 7 and 8.
Spector v Ageda [1973] Ch 30.
3
Australian Solicitors Conduct Rules 2012 rules 4 and 6.
4
Australian Solicitors Conduct Rules 2012 rule 3.
2