Confidentiality Flashcards
What is confidentiality?
Fundamental principle of solicitor-client relationship
Solicitor is not allowed to inform others of the facts which clients gives them.
What is the duty of confidentiality?
Must keep affairs of CURRENT and FORMER clients confidential, UNLESS disclosure is required, or permitted by law, OR client consents to it.
When does the duty of confidentiality apply?
Applies to al information about a client or matter, regardless of that source of information.
Confidentiality attaches to all information provided by the client or a third party in connection with the retainer.
Who is confidentiality owed to?
Former, as well as existing clients.
When is confidentiality breach required r permitted by law?
A solicitor may disclose confidential information when disclosure is permitted by law:
- Pursuant to a statutory reqiurement
- Pursuant to a statutory duty
- Under a court order
- In some circumstances where a solicitor is acting for a client under a power of attorney
- In compliance with a notice serviced by the legal ombudsman.
What are examples of circumstances which may justify disclosure?
Although still TECHNICALLY amounts to a breach, may be taken into account as mitigation:
- where a client has indicated their intention to commit suicide or serious harm
- preventing harm to children or vulnerable clients
- preventing the commission of a criminal offence
What is the duty of disclosure?
When acting for a client, a solicitor must makes the client aware of all information material to the matter of which the solicitor has knowledge.
This is a PERSONAL DUTY, and so the knowledge of the information must be of that individual solicitor.
What are the exceptions to the requirements to disclose all information to the clients matter?
The disclosure of information is prohibited by legal restrictions imposed int he interests of national security or prevention of crime
Client gives informed consent, given in writing , for information NOT to be disclosed to them
Solicitor has reason to believe that serious physical or mental injury will be caused if the information is disclosed
Information is contained in a privileged document that the solicitor has knowledge, ONLY because it has been mistakenly disclosed.
What is the general prohibition for placing confidential information at risk?
Solicitor must NOT act for a client in a matter where that client has an interest ADVERSE to the interests of another current or former client, for whom confidential information is material to that matter is held, unless either of the exceptions are met.
What are the exceptions for acting for a client in a matter where that client has an interest adverse to the interest of another current or former client for whom confidential information is held?
Effective measures have been taken which result in there being no real risk of disclosure on the confidential information
The current or former client whose information is held has given informed consent, given or evidenced in writing, to the solicitor acting, including to any measures taken to protect their information.
What is the conflict between confidentiality disclosure?
When a solicitor holds confidential information for a former client, which the solicitor would ordinarily be obliged to disclosure to a new client.
Solicitor could not act in the best interest of the new client, without breaching their duty of confidentiality to the FORMER client.
Therefore, solicitor MUST NOT ACT for new client, in absence of informed consent from new client to the information not being disclosed to them.
What is legal professional privilege?
Allows a solicitor to withhold specific information which the solicitor would otherwise be required to disclose.
Applies to information which is passed between solicitor and client, ACTING IN CAPACITY OF SOLICITOR
What is litigation privilege?
Documents created for the sole or dominant purpose of litigation or other adversarial proceedings, which have already commenced or are contemplated.
Communications between solicitor and THIRD PARTIES as well.
