prof conduct

Question 1

what is personal data?

Answer 1

means information about a particular living individual (this can be anyone)

Question 2

does info need to be private information in order for it to be personal data?

Answer 2

no it doesnt - information which is public knowledge or is about someone’s professional life can be personal data

Question 3

does personal data include anonymous information?

Answer 3

no it doesnt include information which is truly anonymous. however, if you can still identify someone from the details or by combining it with other info then it will count as personal data

Question 4

what are the 6 data protection principles?

Answer 4

used fairly, lawfully and transparently
used for specific explicit purposes
used in a ways that is adequate, relevant and limited to only what is necessary
accurate and, where necessary, kept up to date
kept for no longer than is necessary
handled in a way that ensures appropriate security, including protection agains unlawful or unauthorised processing, access, loss, destruction or damage

Question 5

does the duty of confidentiality only apply to current clients?

Answer 5

no it also applies to former clients as well

Question 6

what is the exception for the rule on the duty of confidentiality?

Answer 6

the duty doesnt apply where disclosure is required or permitted by law

Question 7

what is the duty of disclosure?

Answer 7

you make your client aware of any information material to their case of which you have knowledge

Question 8

What does introduction mean in terms of firm and third party?

Answer 8

This is where third parties introduce potential business to you/the firm

Question 9

What does referrals mean in terms of the firm and third parties?

Answer 9

This is where there is an arrangement that you/the law firm has with a third party where you introduce clients to the third party

Question 10

What are the rules on referrals for personal injury cases?

Answer 10

It is prohibited for solicitors to refer or receive referrals in respect of a C’s claim for damages in personal injury or death to each other for a consideration of a referral fee

Question 11

Who has the onus to prove that a payment in a personal injury case in terms of referral was for services and not a referral fee?

Answer 11

The onus is on you/the law firm/the referrer to prove that any such payment was made/received in consideration for the provision of services or for any genuine reason other than a referral fee

Question 12

Who does the duty of confidentiality apply to?

Answer 12

Applies to all current and former clients. Former clients include clients of a firm you used to work for and clients that used to instruct you but are now at a different firm. Also applies even after the client has died

Question 13

What are the limited exceptions where you can breach the duty of confidentiality?

Answer 13

• statutes empower government bodies like HMRC to require disclose of docs and info
• statutory or regulatory requirements eg, money laundering, anti terrorise, proceeds of crime
• need to reveal info to support a defence in either a civil claim brought against you by a client or criminal proceeds
• believe child is being sexually or physically abused or their health is in danger

Question 14

Who has the duty to disclose to client all information which is material to client’s matter? (Solicitor or firm)

Answer 14

It is the duty on the individual solicitor therefore, it is a personal duty

Question 15

What are some of the exceptions for duty of disclose?

Answer 15

• disclose of info which is prohibited by legal restrictions for national security or prevention of crime
• client gives informed consent
• you believe serious physical or mental injury will be caused to C or another if info is disclosed
• info is contained in privileged doc that you have knowledge of only because it has been mistakenly disclosed

Question 16

You have a duty of confidentiality to X but you obtain info from them which relates to your other client’s case Y. What should you do?
Duty of confidentiality and duty of disclosure

Answer 16

Must not act for Y unless obtain informed consent from Y that info that X has said will not be disclosed to Y.
Even if you do obtain this informed consent, you should only continue to act for Y if it is in Y’s best interests to.
(Only should continue to act for Y if the non-disclosure doesn’t cause any real prejudice)

Question 17

If you have a duty of disclosure to one client and a duty of confidentiality to the other - which prevails?

Answer 17

The duty of confidentiality takes precedence