Confidentiality Flashcards
What is a solicitor’s duty of confidentiality to a client?
You must keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents
- Applies to all information about a client or matter, regardless of the source
- After a client’s death, the right to enforce or waive confidentiality passes to their personal representatives
What is a solicitor’s duty of disclosure to a client?
Disclose to the client all information that is
relevant to the client’s matter of which solicitor personally has knowledge
Only applicable where solicitor is ‘acting for a client on a matter,’ so only applies to current clients
If the solicitor is proposing to disclose some information, what must they consider?
Solicitor should only seek consent to disclose when necessary and in the client’s **best interests **
Client must also understand what information will be disclosed, when and to whom and the purpose of the disclosure
When might a solicitor have to disclose confidential information?
Statutory requirement or duty
Court order
To comply with a notice served by Legal Ombudsman in relation to investigation of complaint
When might disclosure of material information to a client be prohibited?
a) the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;
(b) the client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;
(c) the solicitor has reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed to the client; or
(d) the information is contained in a privileged document that the solicitor has knowledge of only because it has been mistakenly disclosed
- If you receive a document that is privileged and you shouldn’t have, it must be returned to the originating solicitor without being read or without the information being used in another way
What circumstances may mitigate a breach of confidentiality?
A client’s intention to commit suicide or serious self-harm
Information to prevent harm to children or vulnerable adults
Information to prevent the commission of a criminal offence
When might a solicitor refuse to act for a client, in light of the duties of confidentiality + disclosure?
A solicitor must not act 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 which is material to that matter is held unless either of the exceptions set out in the Code is met
An adverse interest would arise if they were opposing parties in litigation for instance
Unlike the disclosure of all material information duty, this relates to firm-wide knowledge
What are the exceptions allowing a solicitor to act where there is adverse interest and material information held by the firm?
1) If effective measures have been taken which result in there being no real risk of disclosure of the confidential information
- To be effective, there must be ‘no real risk’ of the information being accidentally or inadvertently disclosed
- Information must be protected from the other client and their solicitor
- Information barriers or separate servers might suffice
2) If 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
- Client must understand and consider the risks and rewards involved – onus on solicitor to ensure client understands
How does privilege work and what effect does it have in this context?
Where legal professional privilege applies, a solicitor can refuse to disclose
communications between himself and a client
Two sub-types of privilege:
- Legal advice privilege - Communications between a client and a solicitor, where they are ‘acting in the capacity of a solicitor’ (request or provision of advice)
- Litigation privilege - communications created for the sole or dominant purpose of litigation which have commenced or are in reasonable contemplation (Extends to comms between a solicitor and 3rd party)
