Confidentiality Flashcards
when can information be disclosed?
- With the clients consent
-required or permitted by law - circumstances which may justify disclosure
What are the circumstances which may justify disclosure?
- where a client has indicated their intention to commit suicide or serious self-harm
- Preventing harm to children or venerable adults
- Preventing the commission of a criminal offence
Should not be disclosed after the event
A solicitor has a duty to make the client aware of all information material to the matter of which the solicitor has knowledge. But what are the exceptions?
- disclosure of info is prohibited by legal restrictions imposed in the interest if national security or prevention of crime
- Client gives informed consent to the info not being disclosed to them
- Solicitor has a reason to believe that serious mental or physical injury will be caused to client or another if info is disclosed to client
- Privileged document that the solicitor has knowledge of only because it has been mistakenly disclosed
What should a solicitor do if they accidentally misaddress correspondence destined for their client to the solicitor acting for another party?
the solicitor should immediately return the papers without reading them or not make use of the papers
What does the Code of Conduct for Solicitors provide in order to protect against any accidental disclosure (Paragraph 6.5)?
- S must not act for a client where that clients interest clash with another client for whom you have confidential information that’s important for that case
What are the exceptions for Paragraph 6.5?
effective measures have been taken which result in there being no real risk of disclosure of the confidential information
or
Informed written consent from the client whose information is held by Solicitor, including consent to any protective measures.
What happens when solicitors duty of confidentially conflicts with their duty to disclose?
(e.g solicitor holds info for a former client which the solicitor would originally be obliged to disclose to new client)
Solicitor must not act for new client in absence of informed consent from the new client to the information being disclosed to them
The fact a solicitor cannot meet their obligations to the new client because of their obligations to the former client will be no defence to a breach
What happens if there is a overlap with conflict of interest?
Existence of conflict of interest may prevent a solicitor from acting irrespective of the exceptions of 6.5. Unless one of the clients gives informed consent to the information being disclosed to other client
What are the other factors that a solicitor can refuse to act for a 2 opposing clients?
Professional embarrassment
Whats the difference between confidentiality and privilege?
confidentiality prevents a solicitor from disclosing any info relating to a client,
Legal professional privilege allows a solicitor to withhold certain information that they would otherwise be obligated to disclose
Who can only waive (give up) privilege?
Client
Legal advice privilege
Legal professional privilege
Legal advice privilege -> communication must relate to the request of advice to the client
However, documents exchanged with third parties are not covered by this privilege.
Legal professional privilege -> enables client to speak to solicitor without worrying that info will be passed but there are limitations
When will privilege not attract?
if the communication is made for the purpose/carry-out of committing fraud or a crime
Claim litigation privilege?
for documents created solely or primarily for litigation purposes, whether proceedings have commenced or are anticipated.
This privilege also covers communications between solicitors and third parties related to litigation
What are solicitors protected from during court?
solicitors are protected from defamation lawsuits for anything said in court as an advocate, as it is considered privileged communication
