Defending a Client Pt 2 Flashcards
How you should act ethically and what does the principle entail
Under the SRA code of conduct para 6.3 you are under professional duty to keep the affairs of the client confidential, and under a duty to pass on to the client all materials information regardless of the source.
You should not pass on any information about the client to the police unless authorised to do so by the client.
What are the important issues regarding the confidentiality of the communications between the client and you
1) Not to disclose communications between them and their client
2) The power of the police to obtain material which may be privileged
3) Whether the police can listen to communications between a lawyer and client.
What is legal professional privilege
The legal professional privilege is an evidential rule governing the question whether a lawyer can be required to divulge information which is otherwise confidential.
Legal professional privilege is confined to communications between a lawyer and the client which are made for the purpose of enabling the client to obtain legal advice.
Confidentiality rule covers all confiendtial information about the client affairs
How far does confidentiality extend to
It does not extend to information unrelated to the retainer.
For example if you attending a client at the police station and whilst there the client steals another phone. In these circumstances to give a statement to the police would not breach your duty of confidentiality.
Acting Ethically
Why and when would the duty of confidentiality be overridden
Where disclosure is required or permitted by law:
1) To prevent the client or a third party committing a criminal act which you believe is likely to result in serious bodily harm
2) Where the client is a child and discloses continuing sexual or other physical abuse but refuses to allow disclosure of such information or when the client is an adult and discloses abuse of a child by them or another adult and refuses to allow disclosure of such information.
3) where disclosure is required by statue under the proceeds of crime Act 2002 or the Money Laundering Regulations.
4) Where you believe that their client is genuine in their intention to commit sucide or self harm and there is no other way of dealing with issues
5) where a Court orders confidential information to be disclosed or issues a Warrant which authorise the seizure of confidential information
What should you consider if the police try to persuade you to disclose them information which is covered by legal professional privilege
If the client does not consent then you should consider:
1) if the documents are covered by a duty of confidentiality? if the information or documents have been received from the client or prepared in the course of giving interview then they are. You should insist that the police obtain a subpoena .
2) Will you commit an offence if you do not give information or documents? you will not if you believe they are covered by the duty of confidentiality.
Unless under s 15-18 TA Act 200 = funding arrangements, use and possession, fund raising and money laundering in relation to terroism
Do the police have the power to seize documents?
Unless you are arrested the police have no power to seize documents or other other material from them whilst they are at the police station
if the documents have been created throughout the course of the lawyer and client relationship or have been passed by the client then they are bound by legal privilege
If documents are bound by legal privilege how can the police to obtain them and why would they obtain them
if they are held with the intention of furthering a criminal purpose., this would require a production order or a search warrant.
What you should you do if you client makes an admission of guilt
This does not mean that the client should be advised to answer police questions and Admit their guilt.
Even if the client is in fact guilty the police may not have sufficient evidence to charge or successfully prosecute without a confession.
You should uphold the principles of privilege against self-incrimination and the presumption of innocence and carefully question the client in order to establish facts and their understanding of the law.
The client may be unaware of the requirements required by law to prove that they are guilty
What should you do if you have suspicions about guilt
you should question the client with the kind questions that are likely to be asked at the police station.
Should also advise the client of the devastating effect of lying by the prosecution at trial, as well as the inferences drawn under the Criminal Justice and Public Order Act 1994 s34
If your client story changes in a material way during the consultation?
This should not stop you from acting for the client as your clients recollection may have changed or they have realised their inconsistencies in their stories.
You should only consider stop acting if the client is attempting to put forward false evidence.
In relation to an intention to mislead the police what does the Criminal Law Act 1967 S4 outline
It outlines that any person who knowing or believing someone to be guilty does without lawful authority or reasonable excuse act with intent to impede his apprehension or prosecution shall be guilty of an offence.
What you do if the client tells the lawyer that they intended to lie to the police.
The lawyer should advise them of the adverse consequences of doing so. If the client persists you should withdraw however do not inform the police of the withdrawal because this would violate confidentiality
If the client intends to give a false identity
You should advise the client of the likelihood of their true identity being established due to biometric samples or fingerprints, as well as prosecution for wasting police time or preventing the course of justice.
If the client is not willing to disclose his true identity you should withdraw without letting the police know of your reasons for withdrawal.
What factors should be taken into account where there is a conflict of interest.
1) Although you are under duty to provide all the relevant information to the client, including what the other client has said, it is important to note that the duty of confidentiality always overrides the duty of disclose per the SRA regulations.
2) Disclosure of information from one client to another client requires permission from the client whom the information has been obtained.
3) When doing the above you should approach with caution as passing information from one client to another may assist them to falsely put forward the same story to the police.
4) if a conflict or a significant risk of a conflict becomes apparent after seeing the subsequent client you should consider withdraw from both cases.
5) If the lawyer concludes early in an interview with the second client that there is likely to be conflict , it may be possible to withdraw from acting for that second client while continuing to act for the first.
6) When withdrawing from acting for the client, you should not disclose the reason for withdraw to the client or police.
