Managing Confidentiality

This article discusses the importance of confidentiality between solicitor and client.

The duty of confidentiality is fundamental to the relationship of solicitor and client. It exists as an obligation in law having regard to the nature of the contract of retainer and as a matter of conduct. All the information a solicitor discovers about a client in the course of a retainer is confidential; whether the information is also privileged is a separate issue.

A solicitor is under a duty to keep confidential to his or her firm the affairs of clients and to ensure that all the staff do the same. It is therefore important that the duty of confidentiality is specifically included as a term of the employment contract with the staff and that they are also specifically instructed upon joining and also from time to time reminded of this obligation. Staff who do not appreciate the duty of confidentiality can give rise to significant liability for the firm.

The duty of confidentiality extends to all matters communicated to the solicitor by the client. Even if the communication is non-privileged it remains the solicitor’s duty to keep the client’s affairs confidential.

Disclosure of a client’s confidences which is unauthorised by the client or the law may not only result in legal liability for breach of confidence but may also lead to disciplinary proceedings against the solicitor.

The duty of confidentiality applies to information about a client’s affairs irrespective of the source of the information. It continues despite the end of the retainer or the death of the client when the right to confidentiality passes to the client’s personal representatives.

A solicitor who acquires information on behalf of a prospective client may be bound by the duty of confidentiality even if he is not subsequently retained by the client.

Information given to the solicitor in the context of a joint retainer must be available between clients. However, all of them must consent before the information may be disclosed to a third party. Information communicated to a solicitor in the capacity of solicitor for only one of the clients in a separate matter must not be disclosed to the other clients without the consent of that client.

Where firms amalgamate, information which each firm has obtained when acting for its clients will pass to the new firm as a result of any express or implied retainer of the new firm and conflicts of interest could arise from the competing duties of confidentiality and disclosure to different clients.

Problems with confidentiality can arise where more than one practice shares premises, office services, computers or other equipment. Solicitors should ensure that, where this is the case, they take appropriate steps to ensure strict confidentiality of client matters.

Breach of confidentiality on the part of a solicitor is a serious matter. Solicitors should give due regard to this in the management of their firm. They should impress upon their staff the importance of this duty and ensure that there are adequate safeguards to prevent inadvertent breaches of confidentiality.

Stanley Jeremiah
Goodwins Law Corporation
E-mail: stanley_jeremiah@goodwinslaw.com