Solicitors' Code of Conduct 2007

Rule 4: Confidentiality and disclosure

 

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Rule 4.05 of the Code of Conduct was amended on 13 July 2010 by the Solicitors' Code of Conduct (Confidentiality and Disclosure) Amendment Rule 2010. The guidance to rules 4.05 and 4.05 was also updated.View rule 4 with 13 July 2010 changes highlighted

Rule 4 of the Code of Conduct was amended on 31 March 2009 as part of a general updating of the rules to introduce firm-based regulation and legal disciplinary practices as provided for in the Legal Services Act 2007. View rule 4 with 31 March 2009 changes highlighted

Introduction

Rule 4 sets out provisions for dealing with the protection of clients' confidential information and the duty of disclosure owed to clients.

Rule

4.01 Duty of confidentiality

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).

4.02 Duty of disclosure

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:

  • (a)

    the duty of confidentiality in 4.01 above, which always overrides the duty to disclose; and

  • (b)

    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.

4.03 Duty not to put confidentiality at risk by acting

If you are a lawyer or other fee earner and you personally hold, or your firm holds, confidential information in relation to a client or former client, you must not risk breaching confidentiality by acting, or continuing to act, for another client on a matter where:

  • (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 below.

4.04 Exception to duty not to put confidentiality at risk by acting - with clients' consent

  • (1)

    You may act, or continue to act, in the circumstances otherwise prohibited by 4.03 above with the informed consent of both clients but only if:

    • (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.

  • (2)

    "Both clients" in the context of  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).

  • (3)

    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.

4.05 Exception to duty not to put confidentiality at risk by acting – without clients' consent

You may act, or continue to act, for a client in the circumstances otherwise prohibited by 4.03 above without the consent of the client for whom your firm, or a lawyer or other fee earner of your firm, holds, or might hold, confidential information which is material to your client (in circumstances described in 4.03) but only if:

  • (a)

    it is not possible to obtain informed consent under 4.04 above 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.

4.06 Waivers

In spite of 22.01(1) (Waivers), the Solicitors Regulation Authority Board shall not have power to waive any of the provisions of this rule.

Guidance to rule 4 – Confidentiality and disclosure

Introduction

  • 1.

    This rule draws together, and describes the interaction of, the obligations created by the duties of confidentiality and disclosure. It also reinforces the common law duty whereby you and your firm must not put confidential information obtained from one client or former client at risk by acting adverse to the interests of that client or former client in a matter where the confidential information would be material. The rule also establishes that where a conflict between these duties arises the duty of confidentiality is paramount. The rule does recognise that confidential information can be protected by the use of information barriers with the consent of the client and, in very limited circumstances, without that consent.

  • 2.

    The rule should be read in conjunction with rule 3 (Conflict of interests) as there are important cross-references contained in both the rules and the guidance.

The duty of confidentiality – 4.01 – general

  • 3.

    Rule 4.01 sets out your fundamental duty to keep all clients' affairs confidential. It is important to bear in mind the distinction between this duty and the concept of law known as legal professional privilege. The duty of confidentiality extends to all confidential information about a client's affairs, irrespective of the source of the information, subject to the limited exceptions described below. Legal professional privilege protects certain communications between you and your client from being disclosed, even in court. However, not all communications are protected from disclosure and you should, if necessary, refer to an appropriate authority on the law of evidence.

  • 4.

    The duty of confidentiality continues after the end of the retainer. After the client dies the right to confidentiality passes to the personal representatives, but note that an administrator's power dates only from the grant of the letters of administration.

  • 5.

    Information received in the context of a joint retainer must be available between the clients. They must, however, 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.

  • 6.

    If you obtain information in relation to a prospective client you may still be bound by a duty of confidentiality, even if that prospective client does not subsequently instruct your firm. There may be circumstances, however, where you receive information where there is no real or genuine interest in instructing your firm and that information is unlikely to be confidential.

Insolvency

  • 7.

    If a client becomes insolvent you will need to consider to whom you owe a duty of confidentiality. To some extent this will depend on whether your client is a company or an individual and you will need to refer to the relevant statutory authority, such as the Insolvency Act 1986. Where a statutory power overrides confidentiality you should consider carefully to what extent it is overridden. 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.

Specific instances where confidentiality is required

  • 8.
    • (a)

      You must not disclose the contents of a will, even after the death of the testator, other than to, or with the consent of, the executor(s), until probate has been obtained.

    • (b)

      You must not disclose the address of a client without the client's consent.

    • (c)

      Where a lender asks for a conveyancing file and you have kept a joint file for both borrower and lender clients, you cannot, without the consent of the borrower, send the whole file to the lender, unless the lender can show to your satisfaction that there is a prima facie case of fraud. If the client does not consent, you should send only those parts of the file which relate to work done for the lender.

    • (d)

      You cannot, without the consent of the relevant client (or, if applicable, its administrator or similar officeholder), sell book debts to a factoring company because of the confidential nature of your bill. If your firm grants, as security to a lender, a charge over your firm's book debts, you need to ensure that you protect clients' confidential information should the lender need to enforce the security. Further advice on this issue can be obtained from the Professional Ethics Guidance Team.

    • (e)

      You should only share office services with other businesses if confidentiality can be ensured.

    • (f)

      If you outsource services such as word processing, telephone call handling or photocopying you must be satisfied that the provider of those services is able to ensure the confidentiality of any information concerning your clients. This would normally require confidentiality undertakings from the provider and checks to ensure that the terms of the arrangements regarding confidentiality are being complied with. Whilst you might have implied consent to confidential information being passed to external service providers, it would be prudent to inform clients of any such services you propose to use in your terms of business or client care letters.

Disclosure of confidential information in exceptional circumstances

  • 9.

    Despite your duty of confidentiality you may be required to disclose confidential information in certain circumstances. A number of statutes empower government and other bodies, for example HM Revenue and Customs, to require any person to disclose documents and/or information. In the absence of the client's specific consent, you should ask under which statutory power the information is sought, consider the relevant provisions and consider whether privileged information is protected from disclosure. You should only provide such information as you are strictly required by law to disclose.

  • 10.

    There are reporting requirements in relation to money laundering which override the duty of confidentiality and these are set out in the Proceeds of Crime Act 2002, the terrorism legislation and the Money Laundering Regulations 2007. These often require difficult judgements to be made as to whether or not a situation has arisen which would require you to report information to the relevant authorities. You should, however, always be mindful of the importance of your duty of confidentiality to your client. If you are uncertain as to whether you should report confidential information you should consider seeking legal advice or contact the Professional Ethics Guidance Team for advice.

  • 11.

    The Freedom of Information Act 2000 applies to the majority of public bodies and to local authorities. This Act establishes a right to know the content of records held by certain public bodies subject to certain exemptions such as legal professional privilege. The legal professional privilege exemption is conditional and can only be relied upon where the public interest in maintaining the exemption outweighs the public interest in disclosing the information. In some cases, disclosure of matters which are on legal files may be required by law under the Act. The Information Commissioner's website provides Awareness Guidance upon this area of the Act.

  • 12.

    You may reveal confidential information to the extent that you believe necessary to prevent the client or a third party committing a criminal act that you reasonably believe is likely to result in serious bodily harm.

  • 13.

    There may be exceptional circumstances involving children where you should consider revealing confidential information to an appropriate authority. This may be where the child is the client and the child reveals information which indicates continuing sexual or other physical abuse but refuses to allow disclosure of such information. Similarly, there may be situations where an adult discloses abuse either by himself or herself or by another adult against a child but refuses to allow any disclosure. You must consider whether the threat to the child's life or health, both mental and physical, is sufficiently serious to justify a breach of the duty of confidentiality.

  • 14.

    In proceedings under the Children Act 1989 you are under a duty to reveal experts' reports commissioned for the purposes of proceedings, as these reports are not privileged. The position in relation to voluntary disclosure of other documents or solicitor-client communications is uncertain. Under 11.01, an advocate is under a duty not to mislead the court. Therefore, if you are an advocate, and have certain knowledge which you realise is adverse to the client's case, you may be extremely limited in what you can state in the client's favour. In this situation, you should seek the client's agreement for full voluntary disclosure, for three reasons:

    • (a)

      the matters the client wants to hide will probably emerge anyway;

    • (b)

      you will be able to do a better job for the client if all the relevant information is presented to the court; and

    • (c)

      if the information is not voluntarily disclosed, you may be severely criticised by the court.

    If the client refuses to give you authority to disclose the relevant information, you are entitled to refuse to continue to act for the client if to do so will place you in breach of your obligations to the court.

  • 15.

    You should reveal matters which are otherwise subject to the duty to preserve confidentiality where a court orders that such matters are to be disclosed or where a warrant permits a police officer or other authority to seize confidential documents. If you believe that the documents are subject to legal privilege or that for some other reason the order or warrant ought not to have been made or issued, you should normally, without unlawfully obstructing its execution, discuss with the client the possibility of making an application to have the order or warrant set aside. Advice may be obtained from the Professional Ethics Guidance Team.

  • 16.

    Occasionally you may be asked by the police or a third party to give information or to show them documents which you have obtained when acting for a client. Unless the client is prepared to waive confidentiality, or where you have strong prima facie evidence that you have been used by the client to perpetrate a fraud or other crime and the duty of confidence does not arise, you should insist upon receiving a witness summons or subpoena so that, where appropriate, privilege may be claimed and the court asked to decide the issue. If the request is made by the police under the Police and Criminal Evidence Act 1984 you should, where appropriate, leave the question of privilege to the court to decide on the particular circumstances. Advice may be obtained from the Professional Ethics Guidance Team.

  • 17.

    Certain communications from a client are not confidential if they are a matter of public record. For example, the fact that you have been instructed by a named client in connection with contentious business for which that client's name is on the public record is not confidential, but the type of business involved will usually be confidential.

  • 18.

    You may reveal confidential information concerning a client to the extent that it is reasonably necessary to establish a defence to a criminal charge or civil claim by your client against you, or where your conduct is under investigation by the SRA, or under consideration by the Solicitors Disciplinary Tribunal.

  • 19.

    In the case of a publicly funded client, you may be under a duty to report to the Legal Services Commission information concerning the client which is confidential and privileged.

Duty to disclose information to a client – 4.02

  • 20.

    You have a duty to disclose all information material to your client's matter. Your duty is limited to information of which you are aware (and does not extend to information of which others in your firm may be aware) but is not limited to information obtained while acting on the client's matter. You will not be liable, therefore, for failing to disclose material information held by others within your firm of which you were unaware. There are, however, some circumstances where you should not disclose material information because it is not in the best interests of your client to do so or because disclosure is prohibited by law. These include situations where:

    • (a)

      disclosure may be harmful to the client because of the client's physical or mental condition;

    • (b)

      the provisions in the money laundering legislation effectively prohibit you from passing information to clients;

    • (c)

      it is obvious that privileged documents have been mistakenly disclosed to you; or

    • (d)

      you come into possession of information relating to state security or intelligence matters to which the Official Secrets Act 1989 applies.

  • 21.

    Rule 4.02 also prevents you from disclosing information where this would breach your firm's duty of confidentiality to another client. The duty of confidentiality will always override the duty of disclosure.

  • 22.

    You cannot, however, excuse a failure to disclose material information because to do so would breach a separate duty of confidentiality. Unless the retainer with the client to which the information cannot be disclosed can be varied so that the inability to disclose is not a breach of duty (see note 25 below), you should refuse the instructions or, if already acting, immediately cease to act for that client. Any delay in ceasing to act is likely to increase the risk that you are liable for breach of duty.

  • 23.

    You should not seek to pass the client to a colleague (who would not be bound by the same duty because he or she is personally unaware of the material information) unless the client agrees to this, knowing the reason for the transfer and, if you have already started to act for the client, agreeing that you are released from your duty to disclose up to the time when you personally cease to act for the client on that matter. Further, you should consider carefully whether, even if these conditions are satisfied, it is appropriate for any members of your firm to act. A firm which holds information which it cannot convey to a client but which, if known to that client, might affect the instructions to the firm in a material way will usually be in an invidious position and quite possibly unable to act in the best interests of the client - see rule 3 (Conflict of interests). See also note 15 of the guidance to rule 3.

  • 24.

    The rule does not define "information which is material to that client's matter" but it must be information which is relevant to the specific retainer with the client and not just information which might be of general interest to the client. The information must also be more than of inconsequential interest to the client. It must, therefore, be information which might reasonably be expected to affect the client's decision making with regard to their matter in a way which is significant having regard to the matter as a whole.

  • 25.

    The duty outlined above reflects and builds on the fiduciary duty which exists at common law. As 4.02(b)(ii) makes clear, however, you or your firm can expressly agree a different degree of duty. For example, a client might wish to instruct you because it knows that you act for other entities which operate in the same market and because it knows that you, therefore, understand the market. The client would not be surprised that you hold material market intelligence of a confidential nature from such other clients, and would not expect you to divulge it. The client might, therefore, agree that the usual duty to disclose would not apply.

Duties of confidentiality and disclosure conflicting – 4.03

  • 26.

    Rule 4.03 sets out the duty not to put confidentiality at risk by acting for a client where to do so might put at risk the confidential information held by your firm for another client (or former client). The rule makes clear that the relevant circumstances of risk arise where:

    • (a)

      the confidential information "might reasonably be expected to be material" to the client for whom you wish to act; and

    • (b)

      the work for the client for whom you wish to act would be adverse to the interests of the client or former client to whom the duty of confidentiality is owed.

    The effect of note 26(b) is that you can act if the confidential information your firm holds is not reasonably expected to be material to your new client or is reasonably expected to be material to your new client but the interests of the clients are not adverse. The confidential information would, however, have to be protected and you and your firm would be answerable in law and conduct if it leaked.

  • 27.

    The rule does not define adverse interest, but the intention is to mirror what is considered adverse for these purposes at common law (see Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222; [1999] 1 All ER 517; [1999] 2 WLR 215 and subsequent cases). Essentially, adversity arises where one party is, or is likely to become, the opposing party on a matter, whether in negotiations or some form of dispute resolution. For example, if your firm acted for a client in a criminal case in which the client was convicted of assault and the client's wife, unaware of the conviction, then wished you to represent her in divorce proceedings you would have to refuse the instructions. The confidential information held about the husband would be material to her case and, if so, her interests would be adverse to his.

  • 28.

    In contrast, action which seeks to improve the new client's commercial position as against others generally within a particular sector would not be "adverse" to the interests of another client which is one such competitor. This should be the case even if there might be some risk that such a market competitor might seek to challenge the activities of the client before, for example, the competition authorities.

  • 29.

    There may, however, be some circumstances where you are permitted to act under 4.03 but where other considerations will prevent you from doing so. It might be that you personally have confidential information from another client/former client which would be material to the new instruction but, since the instruction would not be adverse to the other client/former client, 4.03 does not bite. In this situation, the duty of confidentiality conflicts with your personal duty to disclose, and you should therefore not act, unless the new client has expressly agreed a lesser duty of disclosure (4.02(b)(ii)).

  • 30.

    You may act, or continue to act, despite the prohibition in 4.03 if the confidential information can be protected through the use of appropriate safeguards in the circumstances set out in 4.04 and 4.05, and as more fully explained in the following guidance notes.

Acting with appropriate safeguards (information barriers) – 4.04 and 4.05

  • 31.

    Rule 4.03 sets the basic standard that you should not normally act on a matter where material confidential information is held elsewhere in the firm and where the matter would be adverse to the interests of the client/former client to whom the duty of confidentiality is owed. To act in these circumstances might increase the risk that the confidential information could be put at risk. The firm can act if the confidential information is not material to the instructions. For guidance on the meaning of "material" see note 24 above.

  • 32.

    Rules 4.04 and 4.05 set out two situations where you can act even when material confidential information is held by another member of the firm. Both recognise that it can be acceptable to use information barriers. The first situation is where the party to whom the duty of confidentiality is owed consents. The second situation is where consent has not been given or cannot be sought.

  • 33.

    Where the client consents as envisaged by 4.04 there is scope for more flexibility in the arrangements for the information barrier as the safeguards can be discussed with, and agreed by, the client. It is important, nonetheless, that the safeguards are effective to avoid a real risk of disclosure. A firm will be liable if confidential information does leak in breach of that agreement.

  • 34.

    Rule 4.04 requires "informed consent" and one of the difficulties with seeking such consent of the client is that it is often not possible to disclose sufficient information about the identity and business of the other client without risk of breaching that other client's confidentiality. You will have to decide in each case whether you are able to provide sufficient information for the client to be able to give "informed consent". Every situation will be different but generally it will be only sophisticated clients, for example, a corporate body with in-house legal advisers or other appropriate expertise, who will have the expertise and ability to weigh up the issues and the risks of giving consent on the basis of the information they have been given. If there is a risk of prejudicing the position of either client then consent should not be sought and you and your firm should not act. It may, however, be possible to give sufficient information to obtain informed consent even if the identity of the other client(s) and the nature of their particular interest(s) are not disclosed. Wherever possible you should try to ensure that the clients are advised of the potential risks arising from your firm acting before seeking their consent.

  • 35.

    In the case of sophisticated clients (such as those referred to in note 34 above) only, it may be possible to seek consent to act in certain situations at the start of and as a condition of your retainer and to do so through standard terms of engagement. For example, a sophisticated client may give its consent in this way for a firm to act for a future bidder for that client if, when the bidder asks the firm to act, a common law compliant information barrier is put in place to protect any of the client's confidential information which is held by the firm and which would be material to a bidder.

  • 36.

    Where the client does not consent or does not know about the arrangements, an extremely high standard in relation to the protection of confidential information must be satisfied. In this situation, as has been demonstrated in recent case law, the client can have the firm removed from acting with all the attendant disruption for the other client, if there is shown to be a real risk of confidential information being leaked.

  • 37.

    Where your firm holds material confidential information you may act in circumstances where the party to whom the duty of confidentiality is owed refuses consent or cannot be asked (4.05). This may be because it cannot be contacted or because making the request would itself breach confidentiality. You should always seek consent when you can reasonably do so.

  • 38.

    Where under 4.04 your firm has erected an information barrier without the consent of the party to whom the duty of confidentiality is owed, the firm should try to inform that party as soon as circumstances permit, and outline the steps which have been taken to ensure confidentiality is preserved. If some material points (such as the name of the client to whose matter the confidential information might be relevant, or the nature of that matter) still cannot be divulged for reasons of confidentiality and it is reasonably supposed that that party would be more concerned at news of your retention than if fuller details could be given, it might be appropriate to continue to wait before informing that party. There may be circumstances, however, where it is impossible to inform that party.

  • 39.

    Where two or more firms amalgamate, or one firm takes over another, the new firm needs to ensure that this does not result in any breach of confidentiality. If the firm holds confidential information that is material to a matter being handled for another client, the firm must be able to ensure that the confidential information is protected by ceasing to act for both clients, or ceasing to act for the client to whom the information is relevant, or by setting up adequate safeguards in accordance with either 4.04 or 4.05.

  • 40.

    Confidential information may also be put at risk when partners or staff leave one firm and join another. This might happen where, for example, an individual joins a firm which is acting against one of the individual's former clients. An individual joining a new firm could not act personally for a client of the new firm where to do so would put at risk confidential information which he or she personally possesses about a client of the previous firm. In addition, the individual and the firm which the individual is joining must ensure that adequate safeguards are put in place in accordance with 4.04 or 4.05 to ensure that confidential information held by that individual is safeguarded.

Safeguards for information barriers

  • 41.

    Rigid safeguards for information barriers have not been enshrined in the rules. Where 4.04 applies (i.e. consent has been given), it is for the firm to agree the appropriate safeguards, but it would normally be necessary to satisfy note 44 (a) to (f). Some of note 44 (g) to (n) may also be applicable. Where 4.05 applies, the firm must satisfy the requirements of common law and at least most, if not all, of note 44 (a) to (n) might be essential.

  • 42.

    If, at any stage after an information barrier has been established, it becomes impossible to comply with any of the terms, the firm may have to cease to act. The possibility of this happening should always be discussed when instructions are accepted so that the client is aware of this risk, or addressed with reasonable prominence in standard terms of engagement.

  • 43.

    Firms will always need to consider whether it is appropriate in any case for an information barrier to be used, and also whether the size or structure of a firm means that it could not in any circumstances be appropriate. It is unlikely that, for example, safeguards could ever be considered adequate where:

    • (a)

      a firm has only one principal and no other qualified staff;

    • (b)

      the solicitor possessing, or likely to possess, the confidential information is supervised by a solicitor who acts for, or supervises another solicitor in the firm who acts for a client to whom the information is or may be relevant; or

    • (c)

      the physical structure or layout of the firm is such that confidentiality would be difficult to preserve having regard to other safeguards which are in place.

  • 44.

    The following note 44 (a) to (f) would normally be appropriate to demonstrate the adequacy of an information barrier when you are proposing to act in circumstances set out in 4.04. It might also be appropriate to agree some or all of note 44 (a) to (f) where you are acting with consent in accordance with 4.05:

    • (a)

      that the client who or which might be interested in the confidential information acknowledges in writing that the information held by the firm will not be given to them;

    • (b)

      that all members of the firm who hold the relevant confidential information ("the restricted group") are identified and have no involvement with or for the other client;

    • (c)

      that no member of the restricted group is managed or supervised in relation to that matter by someone from outside the restricted group;

    • (d)

      that all members of the restricted group confirm at the start of the engagement that they understand that they possess or might come to possess information which is confidential, and that they must not discuss it with any other member of the firm unless that person is, or becomes, a member of the restricted group, and that this obligation shall be regarded by everyone as an ongoing one;

    • (e)

      that each member of the restricted group confirms when the barrier is established that they have not done anything which would amount to a breach of the information barrier; and

    • (f)

      that only members of the restricted group have access to documents containing the confidential information.

    The following arrangements may also be appropriate, and might in particular be necessary where acting in circumstances set out in 4.05:

    • (g)

      that the restricted group is physically separated from those acting for the other client, for example, by being in a separate building, on a separate floor or in a segregated part of the offices, and that some form of "access restriction" be put in place to ensure physical segregation;

    • (h)

      that confidential information on computer systems is protected by use of separate computer networks or through use of password protection or similar means;

    • (i)

      that the firm issues a statement that it will treat any breach, even an inadvertent one, of the information barrier as a serious disciplinary offence;

    • (j)

      that each member of the restricted group gives a written statement at the start of the engagement that they understand the terms of the information barrier and will comply with them;

    • (k)

      that the firm undertakes that it will do nothing which would or might prevent or hinder any member of the restricted group from complying with the information barrier;

    • (l)

      that the firm identifies a specific partner or other appropriate person within the restricted group with overall responsibility for the information barrier;

    • (m)

      that the firm provides formal and regular training for members of the firm on duties of confidentiality and responsibility under information barriers or will ensure that such training is provided prior to the work being undertaken; and

    • (n)

      that the firm implements a system for the opening of post, receipt of faxes and distribution of e-mail which will ensure that confidential information is not disclosed to anyone outside the restricted group.

    "Member", in the context of this note, applies to principals and all staff members including secretaries, but does not apply to any staff member (not having any involvement on behalf of any relevant client) whose duties include the maintenance of computer systems or conflict/compliance procedures and who is subject to a general obligation of confidentiality in relation to all information to which he or she may have access in the course of his or her duties.

    This guidance should not be read as a representation that compliance with note 44 (a) to (n) above will necessarily be considered sufficient at common law.

  • 45.

    Where a firm proposes to erect an information barrier (whether under 4.04 or 4.05) it must first inform the client for whom it acts - or wishes to act - on the matter to which the confidential information might be material. The firm should not act - or continue to act - without that client's consent, with that client understanding that the firm holds information which might be material and which will not be communicated to it; see 4.04(1)(a) and 4.05(b). Although the rule does not require consent to be in writing, it is recommended that this be obtained for evidential purposes to protect both your client's position and your own position.


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