Professional Conduct

Question 1

Exceptions to the Duty of Confidentiality

Answer 1

1. Permitted by Law
2. Client Consent

Question 2

When would a breach of confidentiality be authorised by law / required by law?

Answer 2

1. pursuant to a statutory requirement, eg to His Majesty’s Revenue and Customs in certain circumstances;
2. Pursuant to a statutory duty
3. 3. under a court order, or where a police warrant permits the seizure of confidential documentation;
4. in some circumstances where a solicitor is acting for a client under a power of attorney or as a court appointed deputy;
5. in compliance with a notice served by the Legal Ombudsman under s 147 of the Legal Services Act 2007 requiring the production of information/documentation to facilitate the investigation of a complaint.

Question 3

Mitigating Factors when a solicitor has breached their duty of confidentiality

Answer 3

1. Client has intention to commit suicide or serious self-harm
2. Preventing harm to children / vulnerable adults
3. Preventing the commission of a criminal offence

Question 4

Exceptions to a Solicitor’s Duty to disclose

Answer 4

1. the disclosure of the information is prohibited by legal restrictions imposed in the interests of national security or the prevention of crime;
2. the client gives informed consent, given or evidenced in writing, to the information not being disclosed to them;
3. 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
4. the information is contained in a privileged document that the solicitor has knowledge of only because it has been mistakenly disclosed.

Question 5

When is a solicitor able to act in a matter where that client has an interest adverse to the interest of another current or former client for whom confidential information is being held

Answer 5

1. Effective measures have been taken which result in there being no real risk of disclosure of the confidential information; or
2. 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. (these apply most likely to former clients)

Question 6

Can a solicitor with an ‘own interest’ conflict act for a client? When?

Answer 6

A conflict between the client’s interest and the solicitor’s interests (CAN NEVER ACT)

Question 7

Can a solicitor act where there is a conflict of interest between a current and past client?

Answer 7

Once the retainer has been terminated, the solicitor no longer owes this duty to the client but still owes duty of confidentiality
- If a conflict of interest arises, should drop one client if they cannot ensure that confidentiality will be upheld

Question 8

When can a solicitor / firm act for two clients where there is a risk if a conflict of interest?

Answer 8

**the firm can act if they have consent of both parties and either applies:

1. the clients have a substantially common interest in relation to the matter or the aspect of it, as appropriate; or (Paragraph 6.2(a))
2. the clients are competing for the same objective* corporate clients (Paragraph 6.2(b))

Question 9

Conditions for a solicitor to act for two clients with a conflict of interest?

Answer 9

1. Informed consent given by all clients in writing
2. effective safeguard to protect confidentiality
3. solicitor believes it is reasonable to act for both (not the case where one client is vulnerable etc.)