Confidentiality and conflicts Flashcards
Barristers have an obligation to not disclose confidential information. What ethical rule deals with this? and what are the exceptions?
r 108 - A barrister must not disclose (unless compelled by law) or use confidential information obtained by the barrister in the course of the practice concerning any person whom the barrister owes a duty of confidentiality unless…
(a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or
(b) the person who is owed the confidentiality consents; or
(c) barrister discloses it in a confidential setting for the sole purpose of obtaining advice about barristers legal or ethical advice about.
Barrister can disclose confidential information where consent is provided. What is the disclosure limited by and what rule deals with this?
r 109 - disclosure or use must be within the scope of consent
There are limited circumstances where a barrister can communicate confidential information without the client’s consent (or the consent of the person which confidentiality is owed). What rule/s deals with that?
Hint two rules
r 110 - a barrister will not have breached r 108- 109 by communicating information to a member of the barrister’s staff for the purposes of that person undertaking clerical or administrative work in relation to the matter, or to a reader or to another barrister doing work as permitted by Rule 107.
Where a barrister has given another barrister (reader) work under a devilling arrangement…is the reader under the same confidentiality obligations? If so, what rule provides for this?
r 111 - yes - A barrister who is shown a brief as a reader or under an arrangement covered by Rule
107 is bound by the same duties of confidentiality which bind the barrister whose brief
it is, including the duties imposed by Rule 108 and 109.
Where has accepted a brief and it becomes apparent the barrister has information confidential to a person other than client which is material to the client’s case or the advancement of the client’s interest what must the barrister do ?
r 112 barrister must return the brief unless the person who is owed the duty of confidentiality consents to the use of that information.
Where a barrister is briefed to appear for two or more parties…the barrister must do what?
r 113 the barrister must determine whether the interests of the clients may conflict and if so must then return the brief for all the clients in the case of confidentiality to which rule 108-109 applies or one or more clients to remove the possibility of conflict…
Where a barrister believes on reasonable grounds that the client may conflict with the interest s of the instructing solicitor or that the client may have a claim against the instructing solicitor the barrister must do what?
r 114 must advise the instructing solicitor of the barristers belief and if the instructing solicitor does not agree to advise the client of the barristers belief, seek to advise the client in the presence of the instructing solicitor of the barristers belief.
What is r 108? (hint confidentiality and conflicts)
- A barrister must not disclose (except as compelled by law) or use in any way
confidential information obtained by the barrister in the course of practice concerning
any person to whom the barrister owes some duty or obligation to keep such
information confidential unless or until:
(a) the information is later obtained by the barrister from another person who is
not bound by the confidentiality owed by the barrister to the first person and
who does not give the information confidentially to the barrister; or
(b) the person has consented to the barrister disclosing or using the information
generally or on specific terms; or
(c) the barrister discloses the information in a confidential setting, for the sole
purpose of obtaining advice in connection with the barrister’s legal or ethical
obligations.
What is r 109? (hint confidentiality and conflicts)
- A barrister must not disclose (except as compelled by law) or use confidential
information under Rule 108(b) in any way other than as permitted by the specific terms
of the person’s consen
What is r 110? (hint confidentiality and conflicts)
- A barrister will not have breached Rules 108 and 109 simply by showing briefs to or
disclosing information contained in a brief to the barrister’s instructing solicitor in the
matter, to a member of the barrister’s staff for the purposes of that person undertaking
clerical or administrative work in relation to the matter, or to a reader or to another
barrister doing work as permitted by Rule 107.
What is r 111? (hint confidentiality and conflicts)
- A barrister who is shown a brief as a reader or under an arrangement covered by Rule
107 is bound by the same duties of confidentiality which bind the barrister whose brief
it is, including the duties imposed by Rule 108 and 109.
What is r 112? (hint confidentiality and conflicts)
- A barrister must return a brief other than a brief to appear as soon as possible after the
barrister becomes aware that the barrister has information confidential to a person
other than the client which may, as a real possibility, be material to the client’s case or
to the advancement of the client’s interests, being information which the barrister is
prohibited from disclosing or using unless the person entitled to the confidentiality
consents to the barrister disclosing or using the information as the barrister thinks fit
What is r 113? (hint confidentiality and conflicts)
- A barrister who is briefed to appear for two or more parties in any case must determine
as soon as possible whether the interests of the clients may, as a real possibility,
conflict and, if so, the barrister must then return the brief for:
(a) all the clients in the case of confidentiality to which Rule 108 would apply; or
(b) one or more of the clients so as to remove that possibility of conflict
What is r 114? (hint confidentiality and conflicts)
- A barrister who believes on reasonable grounds that the interests of the client may
conflict with the interests of the instructing solicitor, or that the client may have a claim
against the instructing solicitor, must:
(a) advise the instructing solicitor of the barrister’s belief; and
(b) if the instructing solicitor does not agree to advise the client of the barrister’s
belief, seek to advise the client in the presence of the instructing solicitor of
the barrister’s belief.
Discuss - Hearn v Street;Tri-star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136; Mobile oil v Guina
- Hearn v Street - A party who receives compelled disclosure from the other party is under the implied obligation to only use that information for the purpose of securing justice in the litigation…this protects the disclosing party from suffering any harsher consequences other than invasion of privacy…
- Exceptional circumstances may require the receiving party to provide an express undertaking to provide the disclosing party more protection for example where rivals are required to disclose trade secrets (Mobile Oil v Guina)
- Tristar - Whether the particular case requires more than the implied obligation…the court will determine where to strike the balance between the competing interest…i.e. between a parties confidentiality concerns and the needs of the other litigant to have access to the documents concerned…
- …an express undertaking brings home the importance of confidentiality and the obligations regarding their use.
- Expressed undertaking can have conditions such as restricting access to documents to certain persons i.e. lawyers or requiring viewings
