Every solicitor and employees in law firms know that they are obligated to protect confidential information relating to their clients’ relationship.
However, what may be less understood is the ease with which that duty can be reached and the need to make sure that everyone within the firm understands the importance of client confidentiality at all times.
There are two sides to this coin. The other side of the confidential coin is the duty of disclosure. In this paper, we will consider the obligations of confidentiality and disclosure and look at some of the situations in which confidentiality can be breached.
What is the duty of confidentiality?
The principles regulatory duties relating to confidentiality are found in the SRA Principles 2011. The relevant regulations are solicitors must:
- Uphold the rule of law and the proper administration of justice.
- Act in the best interest of each client.
- Provide a proper standard of service to your clients.
- Behave in a way that maintains the trust the public places in you and the provision of legal services.
Outcome O (4.1) consists of the primary regulatory duty, which implies “solicitors should keep the clients’ affairs confidential unless disclosure is required or permitted by law or the client consent.”
There is also a duty to “ensure that the affairs of clients should be kept confidential.” This is found in section 1(3)(e) of the Legal Services Act 2007.
What is the duty of disclosure?
The principles governing disclosure are numbers 1, 4, 5 & 6. The primary regulatory duty is found in Outcome O (4.2) which provides that “any individual who is advising a client must make them aware of all information material to that retainer of which the individual has personal knowledge.”
The law states in section 1(3)(c) that, “authorised persons should act in the best interests of their client.” However, this applies equally to confidentiality and disclosure.
Confidentiality versus Disclosure
It can be understood that there will be many occasions when the duty to keep the information of a client confidential could clash with the duty to disclose information. Acting for clients in such a situation could cause a conflict of interest.
To this end, Outcome O specially addresses the situation. In a situation where there is a conflict in confidentiality duties to one client concerning your duty of disclosure to another client, your duty of confidentiality takes precedence. However, this sometimes causes confusion, and there is no outright ban on acting in such situations.
When is disclosure permitted?
The basic rule is that a solicitor must keep the happenings of their clients confidential unless disclosure is expected or authorised by law, or the client consents to it. In this context, consent should be informed, i.e. the client should understand the nature of their approval. Also, a client who lacks capacity will not be able to give consent.
However, just because a person is a client does not imply that information accumulated by you that does not relate to a retainer is confidential. For instance, if there is unrelated information to the retainer, it may not be covered by your duty because you have come by it personally outside of the work context.
When can a solicitor breach confidentiality?
A solicitor cannot be under a duty of confidentiality if the client is trying to use them or the firm to commit fraud or other crimes. A client cannot make a solicitor the confidant of a crime and expect them to close up their lips upon any secret they dare to disclose.
Likewise, suppose you are aware that your client is involved in an offence such as money laundering. In that case, you will be under a duty to disclose this to the relevant authorities and carry it out so that the client is not tipped-off that you are doing so.
The SRA has also given several examples of when breaching of confidentiality may be permitted. These include:
- When a client has revealed their intention to commit suicide or severe self-harm. If you believe the client is serious about committing suicide or serious self-harm, and there is no other way to deal with the issue, you should consider seeking consent from the client. When suitable, disclose the information to a third party so that they might receive help.
- Preventing harm to children or susceptible adults. There may be situations involving children or susceptible adults where a solicitor should consider disclosing confidential information to an appropriate authority.
This may be where the child or adult, in question, is the client and they disclose information which denotes they are undergoing sexual or other abuse but decide to disallow disclosure of such information.
- Deterring the committing of a criminal offence. A solicitor may reveal information to curb the committing of a future criminal offence by referring to the principles discussed above. There is no confidence in iniquity that furthers an illegal purpose. The solicitor will need to balance the duty of confidentiality to their client with the public interest in dissuading others’ harm.
They will also need to consider the information available to them carefully and whether this identifies a proposed victim or compelling enough for them to form an opinion that a severe criminal offence will happen.
Nonetheless, the SRA do advise some degree of caution. In considering disclosure, a solicitor should have in mind the absolute nature of legal professional privilege and the fundamental nature of the duty of confidentiality. It would also help if you remembered that the situations in which confidentiality can be breached are rare.
All firms must respect confidentiality, and we hold it in high esteem too. At Qredible.co.uk, our solicitors assure their clients that their information remains confidential.
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