Client confidentiality

Question 1

Media comment

Answer 1

gC22, ethical obligations applying in relation to professional practice also apply in relation to media comment, including independence, confidentiality, etc.

Question 2

Privilege

Answer 2

gC42, in normal circumstances information a client gives their legal advisor is privileged and not disclosed to a court

Question 3

Disclosure required by law

Answer 3

gC45, rC15 acknowledges that duty of confidentiality is subject to this. Might be obliged to disclose certain matters by POCA. This wouldn’t be a breach of rC15

Question 4

Duty to client conflicts with duty to regulator

Answer 4

rC64, must provide information to the BSB as required

Question 5

Case law on rC26.6

Answer 5

English & American Insurance Co Ltd & Others -v- Herbert Smith; ChD 1987; (1987) NLJ 148 and Ablitt -v- Mills & Reeve (A Firm) and Another; ChD (Times, 24-Oct-1995).

Question 6

BSB confidentiality guidance

Answer 6

o All client communications are privileged
o Communications, client information and chambers confidential data (financial or otherwise) must be stored, handled and disposed of securely
o Data controllers under Data Protection Act 2018 and must comply with requirements under that Act and GDPR. Breach of Act/GDPR probably a breach of CD10 and also CD5
o Barristers are responsible for making sure those who undertake work on their own behalf comply
o Practical steps for confidentiality
 Papers should not be left where others can read them and computers should be placed so that they cannot be overlooked, especially when working in public places
 Papers should be stored in a way which minimises the risk of unauthorised access and computers should be password protected
 Suitable arrangements should be made for distributing papers and sending faxes and emails
 Particular care should be taken when using removable devices, including laptops. These should be used to store only information needed for immediate business purposes, not for permanent storage. Information should be at least password protected and preferably encrypted. Great care should be taken in looking after the devices themselves to ensure they are not stolen
 When no longer required, all confidential material must be disposed of securely, for example by returning it to the client or professional client, shredding paper, permanently erasing information no longer required, and securely disposing of any electronic devices which hold confidential information
o Additional safeguards need to be put in place for particularly sensitive information or for cases in which barristers from the same chambers are appearing on opposing sides

Question 7

Confidential document disclosed to you by mistake

Answer 7

You should not read or not read any further and return. If you read, may come under a duty of confidence. This could lead to professional embarrassment (CD2, CD4). May cease to act (rC26.6) but likely that you shouldn’t as it would disadvantage your client (gC83). Should make such use as the document as would be in your client’s interests, informing your opponent first and in the event of objection it’s for the court to determine what use should be made of it.

Question 7

BSB social media guidance

Answer 7

o BSB has more of an interest in the manner in which you post than the substance of your views than the substance but there may be cases where the views or opinions you express may mean that regulatory action is justifiable, for example where you post material online which is dishonest or discriminatory.
o BSB will undertake a human rights balancing exercise (Art 10, 8, 9, - freedom thought, conscience and religion vs the risk damage to access to justice)
o Core duties 3, 5, 6, 8 may be relevant when using social media whilst practising. CD 5 and rC8 when using it in a personal capacity.
o Particular kind of conduct:
 Posting material online that is dishonest may be a breach of CD3, 5, rC8
 Making offensive comments targeting people or sharing content without making it clear you disagree may be a breach of CD5 or rc8. The use of foul language alone is unlikely to amount to a breach
 Comments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a factual basis may breach CD1, CD3, CD5, rC8, rC9.
 Possibility of breaching client confidentiality – CD6. Could be inadvertent, e.g. a geotagged post
o The way the case studies are set up: Conduct occurred in non-professional life (nb this applies quite often, e.g. allegations made by SB) but CD5 and rC8 potentially engaged and so BSB has regulatory interests, therefore BSB would have regard to Arts 8 and 10 before taking regulatory action to ensure interference s justified.
o Will consider how a hypothetical, ordinary reasonable person would be likely to respond, having regard to context and natural and ordinary meaning. Manner in which you express the conduct is relevant as is the impact.

Question 8

If you are going to cease to act and client doesn’t consent

Answer 8

Should clearly explain to lay or professional client reason for doing so (rC27.1).

Question 9

Use of privileged document

Answer 9

Only with permission of court (CPR 31.20)

Question 10

PII

Answer 10

Requires application to the court.

Question 11

Injunctions

Answer 11

Can be granted in relation to confidential/privileged documents. Should proactively apply (rC15.2, mitigating damage).