History of ‘Lawyer X’
Police raided the share house where Lawyer X resided in 1993, where $85,000 worth of amphetamines and cannabis was seized. The ABC reports that weapons and stolen property were also found at the residence.
The two other individuals who lived in the share house were convicted of possessing a traffickable quantity of drugs, one was sent to prison.
However, it appears that Lawyer X escaped conviction.
Two years later, she was registered as a Police Informer.
Another two years later, in 1997, Lawyer X was admitted as a solicitor in Victoria. She became a barrister in 1998.
The identity of Police Informer 3838 was confirmed to be a former criminal defence barrister the High Court and the Victorian Court of Appeal lifted a suppression order prohibiting the disclosure of her name on March 1.
The situation, which has become known as the Lawyer X scandal, is at the centre of the Victorian Royal Commission into the Management of Police Informants.
It was originally reported that Lawyer X had acted as an informer between 2005 and 2009, however, the Royal Commission has since learned that Lawyer X had been recruited as early as 1995.
The High Court has criticised Lawyer X’s behaviour, labelling it a “fundamental and appalling” breach of her professional obligations.
Victoria Police have also been criticised for what the Victorian Bar Association is calling “reprehensible conduct” in encouraging Lawyer X to breach the obligations she owed to her clients.
The Lawyer X scandal
It appears that Lawyer X acted for a number of her clients while also informing on them between 1995 and 2009.
One such client was Tony Mokbel, who is currently serving a 30-year sentence (22 years non-parole) for drug trafficking.
Lawyer X represented Tony Mokbel in seven court hearings between 2002 and 2006. It is reported that she informed Victoria Police about his credit card transactions and continued to provide information about his intentions to fight an extradition order after breaching bail and fleeing to Greece in 2006.
A lawyer’s duty
While the rules that outline a solicitor’s professional obligations vary between states, their general duties involve upholding their obligations to the Court and community, protecting confidentiality, promoting their client’s best interests and avoiding (or at the very least, disclosing) any conflicts of interests that may arise.
Failure to adhere to these professional obligations may compromise their client’s right to a fair trial.
Section 9 of the Solicitor’s Conduct Rules mandates that a solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement.
There are very limited exceptions to such rules, one of which being where a solicitor is permitted to disclose the information for the purpose of preventing imminent serious physical harm to the client or to another person.
It is unclear whether Lawyer X’s behaviour could be characterised as the exception outlined above. Regardless of such categorisation, it is clear that her behaviour has the potential to undermine the integrity of the criminal justice system.
There is a real possibility that the clients who have been informed on by Lawyer X may be able to challenge their convictions on the grounds that they did not have independent counsel.
This means that there may be grounds to overturn at least 20 criminal convictions in the wake of the Lawyer X scandal.
These have included:
Faruk Orman who, in July 2019, had a murder conviction quashed by the Court of Appeal after spending 12 years in custody for the murder of underworld figure, Victor Peirce.
Zlate Cvetanovski has also successfully appealed his conviction after spending almost a decade behind bars for high-level drug trafficking.
The success in overturning these convictions has provided hope of several other jailed underworld figures, including Tony Mokbel, who engaged Ms Gobbo as their barrister.
‘Lawyer X Royal Commission’
Ultimately, these events sparked the Royal Commission into the use of Nicola Gobbo (Lawyer X) as a police informant. Following 129 days of testimony from more than 80 witnesses, the final report was handed down.
The report outlines 111 recommendations, including:
- The Victorian Government conduct a review of how the police force uses its power,
- The Independent Broad-based Anti-corruption Commission (IBAC) be given more money to bring corrupt individuals and bodies to account, and
- Reporting of misconduct be made mandatory for the legal profession.
The report further recommends that a special investigator be appointed to determine if Nicola Gobbo and Victoria Police had broken any laws by their conduct and, if so, they be prosecuted over that conduct.
Other recommendations include:
- Legal advice must be sought before a source is registered,
- There must be “exceptional and compelling” reasons to register a source, for example a threat to national security or a threat to human life or welfare,
- A source must be authorised by the chief commissioner, or a delegate,
- The use of a source must be “proportionate”, and
- Lawyers to be obliged to report suspected misconduct.