Barristers’ confidential email accounts searched in investigation of homophobic slur

The private email accounts of thousands of barristers were secretly searched as part of an internal investigation to uncover the identity of a lawyer suspected of posting a fake Victorian Bar notice that used a homophobic slur.

The Bar Council revealed the potentially serious privacy breach in an email to its 2200 members on Tuesday but stressed no confidential information about clients or cases had been accessed inappropriately.

The Bar Council has notified thousands of barristers their email accounts were secretly accessed.

The email accounts would have contained highly confidential communications between barristers and their clients, and between barristers and other lawyers, police, prosecutors and the courts.

In August 2022, a fake notice on Victorian Bar letterhead was posted in an elevator in the Bar headquarters, the Owen Dixon Chambers East building, that used a homophobic slur to announce the creation of a committee on LGBTI+ issues, on which “white, male heterosexuals” were not allowed to serve.

The Bar Council announced it would conduct an investigation into the matter and refer the incident to the industry watchdog, the Legal Services Board and Commissioner.

On Tuesday, the alert to the professional association’s members revealed the investigation had included searching of private email accounts by a company that provides IT services to members of the bar, Barristers’ Chambers Limited (BCL).

The Bar Council, which stopped short of confirming it authorised access to the email accounts, noted its investigation of the matter was necessary and urgent “because of the significant degree of hurt and upset” caused by the fake notice.

Bar Council president Sam Hay, KC, who sent the email to members on Tuesday, declined to comment.

BCL is a wholly owned subsidiary of the Victorian Bar.

The Bar Council has stressed that the searches were limited to finding the specific homophobic term. Only one email was opened by a BCL employee, but it was deemed irrelevant to the investigation, it said.

“No other information was obtained or retained consequent upon the assessment carried out by BCL,” the email said.

While not apologising for the incident, the Bar Council has said it will not occur again.

“The Bar Council and BCL assure members that no such access will occur in future, unless required or authorised at law.

“There is now a very clear and shared understanding between BCL and the Victorian Bar that the electronic environments used by members are to be maintained in the strictest confidence and will only be interrogated under the compulsion or authorisation of law.”

The Victorian Bar has been critical of alleged police violations of confidentiality in the past, including in 2020 after an “IT error” that potentially exposed the existence or contents of privileged conversations between lawyers and their clients.

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