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Rule 24 of the Legal Profession (Professional Conduct) Rules - Confidentiality
The Ethics Committee, one of the committees of the Council of the Law Society,
is tasked with providing guidance to members on their ethical obligations.
The Committee responds to written questions from Law Society members by rendering
a written opinion through a private and confidential letter. Members can submit
a written inquiry to the Committee through the Representation and Law Reform
Department at represent@lawsoc.org.sg.
From July 2009, the Committee has a regular "Ethics in Practice" column in the Singapore Law Gazette which will publish an anonymised version of the Committee's opinions on various ethical issues for the general guidance of members. Opinions of the Committee are premised on the facts stated therein and the rules of ethics which govern the practice of law in Singapore as at the date on which the opinion is issued. Opinions of the Committee are advisory only and have no force of law - they are not binding in any disciplinary or other legal proceedings. They are issued only to members concerning their own or another member's future conduct and not for their own or others' past conduct or for matters which ought to be properly dealt with either by the court or between the parties. They are also issued on the assumption that the Committee has been informed accurately of all material facts. The Committee does not consider anonymous or hypothetical inquiries or inquiries which amount to complaints about the conduct of others. For detailed guidelines for inquiries to the Committee, please refer to the Council's Practice Direction 2 of 2009 which can be found on the Legal Ethics section of the Law Society's website at www.lawsociety.org.sg.
References in these opinions are made to the Legal Profession Act ('LPA'), the Legal Profession (Professional Conduct) Rules ("PCR") and the Legal Profession (Publicity) Rules ("PR"). When reading the opinions, members should bear in mind that the Committee has omitted facts which it does not consider crucial to the ethical obligations of the lawyer in question or to the guidance given. Members are advised to write to the Committee for a specific opinion on their query in order to receive the Committee's specific guidance on their particular situation with full knowledge of all the facts. If members wish to guide themselves based solely on the Committee's opinion without writing in for a specific opinion, they must accept that they run the risk that there could be crucial differences of fact or in the applicable rules of ethics which could affect their position and render them subject to discipline. Neither the Committee nor the Law Society assumes any responsibility or liability in rendering the Committee's opinions or for anything a member does or omits based on the Committee's opinion and without seeking a formal opinion on the facts of their case from the Committee.
This month's "Ethics in Practice" column
sets out the Committee's opinions on written questions from members on r 24
of the Legal Profession (Professional Conduct) Rules, which states:
Confidentiality
24. -(1) An advocate and solicitor shall not in any way, directly or indirectly
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(a) disclose any confidential information which the advocate and solicitor receives as a result of the retainer; or
(b) disclose the contents of the papers recording such instructions,
unless with the consent of the client or is required bylaw or order of court.
(2) Notwithstanding paragraph (1), an advocate
and solicitor may use the confidential information to reply or defend any
charge or complaint as to his conduct or professional behaviour brought against
him whether in Court or before a disciplinary tribunal of the Society.
Opinion of the Ethics Committee
11 April 2008
Facts
Lawyer X's law firm is issued an order under s 58 of the Criminal Procedure Code ("CPC") by the Commercial Affairs Department ("CAD"), requiring the production of certain documents in the files of Lawyer X's client by a stipulated deadline for the purpose of the CAD's criminal investigations ("the Order"). The Order also states that:
(a) failure to comply with the Order may constitute an offence under s 175 of the Penal Code; and
(b) all investigations conducted by the CAD are confidential, including the service of orders under s 58 of the CPC.
The CAD instructs the law firm not to disclose
the Order to its client, in order to maintain the confidentiality of its investigations.
Questions
1. Would Lawyer X breach any of his ethical duties to his client if he were to comply with the Order?
2. Is Lawyer X ethically obliged to inform his client about the Order or seek his client's consent before complying with the Order?
Answers
1. No, subject to qualifications.
2. No.
Analysis
1. As the function of the Committee is to assist and advise Council in giving guidance to members on ethical issues only, the Committee is unable to give guidance on questions of law. Such questions of law include but are not limited to the scope of the doctrine of legal professional privilege under s 128 of the Evidence Act and under the common law.
2. The committee is therefore able to give guidance
only on the ethical issues arising from the applicable rule in the PCR which
in this case is the confidentiality objection in r 24. Rule 24(1) of the PCR
provides that an advocate and solicitor shall not in any way, directly or
indirectly -
(a) disclose any confidential information which the advocate and solicitor
receives as a result of the retainer; or
(b) disclose the contents of the papers recording such instructions, unless with the consent of the client or is required by law or order of court.
3. Hence, a lawyer who is required by law to disclose confidential information received as a result of his client's retainer does not breach his ethical obligation under r 24.
4. In the Committee's view, a written order made by a CAD officer under s 58 of the CPC appears to fall within the "required by law" exception in r 24(1) on a literal reading of the Rule. However, it is clearly possible to come to a different conclusion on this question of law. The Court is the final arbiter on this and the only definitive way of determining the question is therefore by making application to court for this question to be decided.
5. Assuming that an order made under s 58 of the CPC falls within the "required by law" exception in r 24(1) or takes precedence over a lawyer's ethical obligation in r 24, r 24(1) would permit the law firm to make such disclosures as are necessarily required by law.
6. Lawyer X should, however, be aware that it remains his ethical duty to be satisfied that the power invoked (in this case, s 58 of the CPC) exists and has been validly exercised and to make the necessary submissions on his client's behalf (in the absence of his client's instructions to the contrary) if there is anything more than a frivolous argument that these conditions are not met. In carrying out this ethical duty, Lawyer X is entitled to take the Order at face value based on the principle that all acts are presumed to have been done rightly and regularly.
7. The PCR do not provide that Lawyer X would be in breach of any ethical obligations if Lawyer X does not inform his client or seek his client's consent on the Order. Moreover, the Committee would opine that the potential for interference with CAD investigations outweighs any such ethical obligations under the PCR. Hence, Lawyer X should comply with any request by CAD not to disclose the Order to his client.
Opinion of the Ethics Committee
13 March 2009
Facts
Lawyer Y's law firm ("the law firm")
wishes to set up a website which will publish, inter alia, a list of all the
reported cases (whether in the SLR or SG series) handled by the law firm.
The website will only state the names and citations of these cases, but not
the name of the client, the name of the lawyer of the law firm who acted for
a particular client or the nature or details of the case.
Question
Would the law firm be in breach of any ethical
obligations in setting up such a website?
Answer
No, subject to qualifications.
Analysis
1. Rule 6(1)(b)(i) of the PR states that a lawyer shall ensure that the publicity of his law firm in Singapore does not mention, directly or indirectly, past cases in which clients for whom he, his law firm or any member thereof had acted, where the provision of such information will involve a breach of confidentiality owed to any client or former client.
2. The ethical obligation to observe client confidentiality is provided in r 24 of the PCR. Under r 24, a lawyer shall not in any way, directly or indirectly, disclose any confidential information which he receives as a result of the retainer or disclose the contents of the papers recording such instructions, unless with the client's consent or is required by law or order of court.
3. However, confidential information which has become public knowledge will cease to be confidential and would no longer fall within the ambit of r 24: see Re A Firm of Solicitors [1997] Ch 1 at 9G. Therefore, the law firm is not prohibited from listing the names and citations of the cases that it has handled, given that such information has become common knowledge and is no longer confidential in any case. For the same reason, the law firm is not prohibited from listing the name of the client and the lawyer of the firm who acted for a particular client, insofar as they are disclosed in the judgments available in the Singapore Law Reports ("SLR") or online via Lawnet.
4. Similarly, the nature or details of the case can be disclosed on the law firm's website if they have already been reported in the SLR or Lawnet. Otherwise, such information remains confidential and cannot be disclosed (except in accordance with the exemptions under r 24) as the confidentiality obligation continues even after the lawyer-client relationship has ended.
Ethics Committee
The Law Society of Singapore