Confidentiality and disclosure

Version 18 of the Handbook was published on 1 November 2016. For more information, please click "History" above.

Chapter 4: Confidentiality and disclosure

This chapter is about the protection of clients' confidential information and the disclosure of material information to clients.

Protection of confidential information is a fundamental feature of your relationship with clients. It exists as a concept both as a matter of law and as a matter of conduct. This duty continues despite the end of the retainer and even after the death of the client.

It is important to distinguish the conduct duties from the concept of law known as legal professional privilege.

Bear in mind that all members of the firm or in-house practice, including support staff, consultants and locums, owe a duty of confidentiality to your clients.

The duty of confidentiality to all clients must be reconciled with the duty of disclosure to clients. This duty of disclosure is limited to information of which you are aware which is material to your client's matter. Where you cannot reconcile these two duties, then the protection of confidential information is paramount. You should not continue to act for a client for whom you cannot disclose material information, except in very limited circumstances, where safeguards are in place. Such situations often also give rise to a conflict of interests which is discussed in Chapter 3.

The outcomes in this chapter show how the Principles apply in the context of confidentiality and disclosure.

Outcomes

You must achieve these outcomes:

O(4.1)

you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents;

O(4.2)

any individual who is advising a client makes that client aware of all information material to that retainer of which the individual has personal knowledge;

O(4.3)

you ensure that where your duty of confidentiality to one client comes into conflict with your duty of disclosure to another client, your duty of confidentiality takes precedence;

O(4.4)

you do not act for A in a matter where A has an interest adverse to B, and B is a client for whom you hold confidential information which is material to A in that matter, unless the confidential information can be protected by the use of safeguards, and:

(a)

you reasonably believe that A is aware of, and understands, the relevant issues and gives informed consent;

(b)

either:

(i)

B gives informed consent and you agree with B the safeguards to protect B's information; or

(ii)

where this is not possible, you put in place effective safeguards including information barriers which comply with the common law; and

(c)

it is reasonable in all the circumstances to act for A with such safeguards in place;

O(4.5)

you have effective systems and controls in place to enable you to identify risks to client confidentiality and to mitigate those risks.

Indicative behaviours

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles:

IB(4.1)

your systems and controls for identifying risks to client confidentiality are appropriate to the size and complexity of the firm or in-house practice and the nature of the work undertaken, and enable you to assess all the relevant circumstances;

IB(4.2)

you comply with the law in respect of your fiduciary duties in relation to confidentiality and disclosure;

IB(4.3)

you only outsource services when you are satisfied that the provider has taken all appropriate steps to ensure that your clients' confidential information will be protected;

IB(4.4)

where you are an individual who has responsibility for acting for a client or supervising a client's matter, you disclose to the client all information material to the client's matter of which you are personally aware, except when:

(a)

the client gives specific informed consent to non-disclosure or a different standard of disclosure arises;

(b)

there is evidence that serious physical or mental injury will be caused to a person(s) if the information is disclosed to the client;

(c)

legal restrictions effectively prohibit you from passing the information to the client, such as the provisions in the money-laundering and anti-terrorism legislation;

(d)

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

(e)

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

IB(4.5)

not acting for A where B is a client for whom you hold confidential information which is material to A unless the confidential information can be protected.

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:

IB(4.6)

disclosing the content of a will on the death of a client unless consent has been provided by the personal representatives for the content to be released;

IB(4.7)

disclosing details of bills sent to clients to third parties, such as debt factoring companies in relation to the collection of book debts, unless the client has consented.

In-house practice

The outcomes listed above apply to your in-house practice.

Notes

(i)

The protection of confidential information may be at particular risk where:

(a)

two or more firms merge;

(b)

when you leave one firm and join another, such as if you join a firm acting against one of your former clients.

(ii)

The following circumstances may make it difficult to implement effective safeguards and information barriers:

(a)

you are a small firm;

(b)

the physical structure or layout of the firm means that it will be difficult to preserve confidentiality; or

(c)

the clients are not sophisticated users of legal services.