Confidentiality and Disclosure

Question 1

Who does the duty that all information relating to a clients affairs must be kept confidential?

Answer 1

• all current clients
• all former clients (including at firms you no longer work for)
• all dead clients

Question 2

What exceptions are there to the duty of confidentiality?

Answer 2

• if statutes require disclosure of documents and certain information to bodies (eg HMRC)
• situations where statute requires reporting (eg anti-terrorism legislation)
• cases where you need to reveal the information to support a defence in civil claim brought against you by a client or criminal prosecution
• cases involving children where they have been sexually or physically abused (even if child refuses to permit disclosure) if child is in danger - may be able to tell appropriate authority

Question 3

What does the duty of disclosure require?

Answer 3

It requires you make the client aware of all information material to the matter of which you have knowledge

Question 4

Whose knowledge is of relevance to the duty of disclosure?

Answer 4

It is a personal duty so only that of the lawyer is aware of individually (not the knowledge of everyone at the firm)

Question 5

What is ‘material information’ in relation to the duty of disclosure?

Answer 5

Information which would reasonably be expected to affect the client’s decision making with regard to the matter and the circumstances as a whole

Question 6

What exceptions are there to the duty of disclosure?

Answer 6

• disclosure is prohibited by legal restrictions imposed in interest of national security or prevention of crime
• client has given informed consent, given or evidenced in writing, to information not being disclosed to them
• you have reason to believe that serious physical or mental injury will be caused to the client or another if information is disclosed
• information is contained in a privilege document that you have knowledge of only because it has mistakenly been disclosed

Question 7

Why will it still be difficult to act for a client who consents to certain information not being disclosed?

Answer 7

It will be hard as:

• difficult for them to give informed consent without knowing all the facts
• solicitor must be satisfied that it is in the best interest of the client to act for them

Question 8

What if the duty of confidentiality and duty of disclosure conflict?

Answer 8

The duty of confidentiality takes precedence