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What is the duty of confidentiality and where in the code of conduct is it found?
You and your firm must keep the affairs of clients and former clients confidential except where disclosure is required or permitted by law or by your client (or former client).
What is the duty of disclosure and where in the code of conduct is it found?
What is this rule subject to?
- If you are a lawyer or other fee earner you must disclose to a client for whom you are personally acting on a matter, whether individually or as one of a group, or whose matter you are personally supervising:
- - All information of which you are aware which is material to that client's matter
- - Regardless of the source of the information
- SUBJECT TO:
- 1) The duty of condifentiality
- 2) the following where the duty does not apply:
- (i)where such disclosure is prohibited by law;
- (ii)where it is agreed expressly that no duty to disclose arises or a different standard of disclosure applies; or
- (iii)where you reasonably believe that serious physical or mental injury will be caused to any person if the information is disclosed to a client.
Which one is always overriding? The duty of confidentiality or the duty of disclosure?
The duty of confidentiality
What duty stops you from acting where there is a risk of the duty of confidentiality? Where is this duty found in the code of conduct?
How does this duty work?
What is the exception to this rule?
The duty not to put confidentiality at risk by acting (Rule 4.03)
- IF you hold confidential information about a (former) client
- THEN You must not act, or continue to act for another client on that matter
- (a)that information might reasonably be expected to be material; AND
- (b)that client has an interest adverse to the first-mentioned client or former client.
EXCEPT where proper arrangements can be made to protect that information in accordance with 4.04 and 4.05 of the Code of Conduct.
When may you continue to act in circumstances normally prohibited by Rule 4.03 (Duty not to put confidentiality at risk by acting) under Rule 4.04?
What does "both clients" mean in this context?
Where you have the client's informed consent
- (a)The client for whom you act or are proposing to act knows that your firm, or a lawyer or other fee earner of your firm, holds, or might hold, material information (in circumstances described in 4.03) in relation to their matter which you cannot disclose;
- (b)you have a reasonable belief that both clients understand the relevant issues after these have been brought to their attention;
- (c)both clients have agreed to the conditions under which you will be acting or continuing to act; and
- (d)it is reasonable in all the circumstances to do so.
- Both clients means:
- (a)an existing or former client for whom your firm, or a lawyer or other fee earner of your firm, holds confidential information; and
- (b)an existing or new client for whom you act or are proposing to act and to whom information held on behalf of the other client is material (in circumstances described in 4.03 above).
If you, or you and your firm, have been acting for two or more clients in compliance with rule 3 (Conflict of interests) and can no longer fulfil its requirements you may continue to act for one client with the consent of the other client provided you comply with 4.04.
If you do not have the client's consent, when may you continue to act in circumstances normally prohibited by
Rule 4.03 (Duty not to put confidentiality at risk by acting)?
- (a)it is not possible to obtain informed consent under 4.04 from the client for whom your firm, or a lawyer or other fee earner of your firm, holds, or might hold, material confidential information;
- (b)your client has agreed to your acting in the knowledge that your firm, or a lawyer or other fee earner of your firm, holds, or might hold, information material to their matter which you cannot disclose;
- (c)any safeguards which comply with the standards required by law at the time they are implemented are put in place; and
- (d)it is reasonable in all the circumstances to do so.
Does the SRA board have the power to waive Rule 4?
1. Does a duty of condifentiality end when the client stops being your client?
2. Or when the client dies?
3. Do you owe a duty of confidentiality to a prospective client?
1. No (Rule 4, note iv)
The duty continues after the end of the retainer.
2. No (Rule 4, note iv)
- The duty passes to the Personal Representatives
- NB: An administrators power dates only from the grant of letters of representation
- 3. Yes (Rule 4, note 6)
- You may still be bound by a duty of confidentiality, even if that prospective client does not subsequently instruct your firm.
- HOWEVER, There may be circumstances where you receive information where there is no real or genuine interest in instructing your firm and that information is unlikely to be confidential.
If you have a joint retainer, due you owe a duty of confidentiality to each client in that joint retainer?
No. Information received in the context of a joint retainer must be available between the clients
- - They must all consent to any confidential information being disclosed to a third party.
- - Information communicated to you when acting for one of the clients in relation to a separate matter must not be
- disclosed to the other client(s) without the consent of that client.
Rule 4, note 5
What do you need to consider if your client becomes insolvent?
What will this depend upon? What do you refer to?
To whom you owe a duty of confidentiality.
And if a statutory power overrides confidentiality, you must consider to what extent the duty is overriden (it may, for example, require you to disclose only certain categories of information or documents. You should ensure that any disclosure you make is strictly limited to what is required by the law).
- This depends on:
- - Whether your client is an individual or a company
You should refer to THE RELEVANT STATUTORY AUTHORITY.
Name 6 specific instances where confidentiality is required under Rule 4, note 8
- 1. The contents of a will until probate has been obtained (except to/with consent of executor(s))
- 2. The address of the client without the client's consent
- 3. The lender asks for a conveyancing file and you have a joint file for the lender and borrower clients, you cannot send the whole file to the lender and must only send those parts relating to work done for the lender unless:
- - You have the borrower's consent
- - The lender can show a prima facie case of fraud
- 4. You cannot sell book debts to a factoring company without the client's consent
- 5. You should only share offices with other businesses if confiedentiality can be ensured.
- 6. When outsourcing services such as photocopying
Give some examples of exceptional circumstances where you may have to disclose confidential information (Rule 4 notes 9- 19).
NB: More details can be found in the notes for each one
- - Where required by statute (note 9)
- - Where you need to report money laundering or terrorism suspicions (note 10)
- - Where the Freedom of Information Act applies (note 11)
- - Where you believe it is necessary to prevent the client/a third party from committed a criminal act that you think is likely to result in SERIOUS BODILY HARM (note 12)
- - Where there is child abuse and there is serious threat to the child's life or mental/physical health(note 13)
- - Experts reports under the children's act 1989 (note 14)
- - When ordered by a court/ where police are permitted by warrant to seize documents (note 15) NOT simply when asked by the police/third party (Note 16)
- - If communications from the client are a matter of public record (Note 17)
- - Where reasonably necessary to establish a criminal defence (Note 18)
What is the duty of disclosure limited to?
When should you not disclose information to your client? Give 4 examples of situations included in this exception.
- Information of which you are aware (not including information which others in your firm may be aware of) but NOT to information obtained while acting on the client's matter.
- You should not disclose information when it is not in the best interests of your client to do so/it is prohibited by law.
- For example
- 1) Where it could be harmful to the client due to his physical/mental condition
- 2) The provisions in the money laundering legislation effectively prohibit you from passing information to clients
- 3) It is obvious that privileged documents have been mistakenly disclosed to you
- 4) You come into possession of information relating to state security or intelligence matters to which the Official Secrets Act 1989 applies
Rule 4, note 20