WHAT TO DO IF AND WHEN CONFIDENTIAL OR PRIVILEGED INFORMATION FALLS INTO YOUR HANDS Flashcards
What CD is active?
CD3
You may cease to act on a matter on which you are instructed and return your instructions if
you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed.
When considering whether or not you are required to return instructions in accordance with Rule C26.6 you should have regard to relevant case law including:
When considering whether or not you are required to return instructions in accordance with Rule C26.6 you should have regard to relevant case law including:
As we know, in any litigation there are certain obligations on the parties to make disclosure to the opponent. These differ between civil and criminal cases and between prosecution and defence. It may be that some of the documents that we are considering here ought to have been disclosed – they may be confidential but not covered by legal professional privilege. Where this situation arises, then there are obligations upon the barrister whose client is refusing to disclose the document or information. See rC25.3 –
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mandatory withdrawal
Where you become aware of a document during the proceedings that ought to have been disclosed but which has not been disclosed, you must advise the client to disclose it. If your client refuses to act on your advice, then you must withdraw.
On the other hand, there may be documents which are both confidential and protected by privilege – such as counsel’s written opinion to the client or counsel’s notes from a client conference.
wHAT IS THE OBLIGATION?
There is no obligation to disclose these and it should be obvious to anyone who sees them that they are completely protected unless and until the client waives privilege and confidentiality.
Goddard v Nationwide Building Society
If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation: however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them.
Although May LJ is referring here to ‘the litigant’, the same observations must apply to the litigant’s barrister.
English & American Insurance Co Ltd v Herbert Smith & Co
Where one party to an action obtained information that was the subject of legal professional privilege belonging to the other side and an order was sought restraining the use of such information before it had been tendered in evidence in legal proceedings, an injunction restraining any use of such information would be granted.
The VC therefore ordered 1. that the solicitors must deliver up to the court any notes they had been made that were based upon what they had read in the bundle and 2. an injunction would be granted to restrain the solicitors from using any information derived from the bundle for the purpose of pleading, evidence-in-chief, cross-examination or in any other manner in those proceedings.
Ablitt v Mills & Reeve
ordered that a firm of solicitors would be restrained from continuing to act for their client in proceedings where they had received a bundle of privileged documents by mistake and had then, on their client’s instructions, read those documents. It remained a possibility that the firm could have continued to represent the client if it had been willing to set up a ‘Chinese wall’ so that those of its lawyers who had read the papers would be excluded from continuing to act in the proceedings. The firm’s reluctance to take such a step resulted in the whole firm being ordered to cease acting as solicitors for the client in the present proceedings.
Primary Group (UK) Ltd. and ors v Royal Bank of Scotland plc and anor
It is clear from subsequent cases concerning privileged documents said to have been disclosed by mistake… that it is not necessary for the recipient to have realised that the information was privileged and hence confidential if a reasonable person in his or her position would have realised this.
What are the summary conclusions?
If a barrister innocently receives information:
If a barrister innocently receives information (in the form of a document or otherwise) and realises before reading it that he ought not to have it, he should return it to its owner unread but could continue to act for his client.
What are the summary conclusions?
If a barrister innocently receives information:
AFTER READING
If a barrister innocently receives information (in the form of a document or otherwise) and realises after reading it that he ought not to have it, he should return it to its owner and is at the mercy of his opponent, who may seek an injunction to restrain him from continuing to act for his client.
wHAT HAPPENS WHERE:
If a barrister innocently receives information (in the form of a document or otherwise) and realises after reading it that he ought not to have it?
the innocent barrister must inform his opponent that he has read the material (otherwise he would be misleading his opponent). Then if, and only if, the opponent does not seek an injunction to restrain him from using the information or to restrain him from continuing to act for his client, he may continue to act in the proceedings and can make use of the information he has obtained; or he may decide that he should withdraw.
Where innocent barrister reads innocently the papers, can opponent seek an injunction?
the opponent is almost guaranteed to seek those injunctive orders against him and, if he does so, the court is almost guaranteed to grant them. So, if the innocent barrister does read the information, he is highly likely to be removed from the proceedings by court order if he does not go voluntarily under rC26.6. In this situation, the longer that the innocent barrister waits to make the decision to withdraw, the greater the likely prejudice that will be suffered by his client when he has to find new representation.
What does “you become aware of confidential or privileged information…’ mean?
can encompass both (a) realising that you have documents which are protected but then not reading them and (b) having that realisation and then reading the documents. It is suggested that if (a) arises then the barrister need not withdraw but if (b) arises, then the barrister ought to withdraw. In both situations, the original documents must be returned to the opponent, of course.
The only exception to the conclusion in (b) would be the situation where the innocent barrister comes into possession of documents which, having read them, he considers are not protected by legal professional privilege and which therefore should have been disclosed to his client through the normal procedures.
WHY?
The public interest behind LPP - encouraging openness between client and lawyer - would probably be overridden by the public interest in effective disclosure between litigants. In this situation, where the innocent barrister has read the documents, he would be entitled to take the view that he can continue to represent his client and to make use of the information (obtained through his reading) in those proceedings. He would have to inform his opponent of his view and his intention. Of course, the opponent and the court may disagree with the innocent barrister’s view. If the opponent applies for an injunction and the court rules that the information is covered by LPP, then the innocent barrister is in difficulties. Either a voluntary withdrawal under rC26.6 or a court order restraining him from acting is really inevitable in that situation.
If the client instructs the barrister to read the documents, or to read them and not disclose that fact to the opponent, or not to tell the opponent that he has them, then the barrister would need to consider whether those instructions were compatible with his Code obligations. It is highly likely that they would involve breaches of several Core Duties. See, for example, rC21.5 and .6, and CD1, CD3, and CD5, thus necessitating withdrawal under rC25. So how to act in this situation ought to be a matter for the barrister to resolve for him- or herself.
