Disclosure of client confidential information

Disclosure of client's confidential information

Issued on 5 February 2016

 

Status

This advice does not form part of the SRA Handbook and is not mandatory, but the SRA may have regard to it when exercising its regulatory functions.

This guidance is intended to highlight that where you disclose client information, your justification for doing so will be taken into consideration for conduct purposes. In some limited circumstances, the justification is likely to result in us deciding to take no regulatory action as a result.

Who is this guidance relevant to?

It is relevant to all solicitors, members of a firm or in house practice including support staff, consultants and locums.

The SRA Principles

Protection of confidential information is a fundamental feature of your relationship with clients. Your duty to keep the affairs of your clients confidential exists as both an obligation in law and professional conduct, and is one of the core professional principles set out in section 1(3)(e) of the Legal Services Act 2007. This requirement is reflected in Principle 1 of the SRA Code of Conduct to uphold the rule of law and proper administration of justice. Principles 2, 4 and 6 are also of relevance.

You should bear in mind the difference between confidentiality and legal professional privilege. In brief terms, confidential information may be disclosed where it is appropriate to do so but privilege is absolute, and privileged information cannot therefore be disclosed. Confidential communications between lawyers and clients for the purpose of obtaining and giving legal advice are privileged. If you are considering whether to disclose information your first question may be whether it is privileged or simply confidential.

An example of this arose in a case which highlights the importance of looking at the function and nature of the documents. In that case, a client travelled to his solicitors’ office after an alleged assault. The police asked the firm to confirm the time of his attendance to enable them to establish the facts. The firm declined on the grounds of privilege. The information was held not to be privileged because it was not a communication for the purpose of legal advice.1

This note discusses situations, below which involve communications between lawyer and client. However, it is assumed for the purposes of this note that whilst these are confidential, they do not directly relate to the matters on which advice is sought and are not privileged.

The SRA Mandatory Outcomes

As well as the relevant Principles2, you will also need to consider Outcome 4.1 of the SRA Code of Conduct 2011, namely that you keep the affairs of your client confidential unless disclosure is required or permitted by law or the client consents. Consent, means informed consent and it should be remembered that a client who lacks capacity would be unable to give such consent.

It is a broad principle of law that a person who has received information in confidence cannot take unfair advantage of it, and must not make use of it to the prejudice of the person who gave the information, without obtaining his consent.3 Information must be confidential in nature, having the "necessary quality of confidence" and disclosed in circumstances importing an obligation of confidence.4

Additionally, you have a professional obligation to keep the affairs of your clients confidential, and this guidance note is specifically focused on this duty.

The duty of confidentiality applies to information about your 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.

Confidentiality will attach to all information given to you, by your client or a third party, in connection with the retainer in which you or your firm are instructed. Should you have information unrelated to the retainer this may not be covered by your duty. An example of this would be where you are attending the client at the police station and whilst there, the client steals another’s trainers.

In these circumstances to give a statement to the police would not breach your duty of confidentiality as it is unrelated to the matter on which you are advising.

This will also be the case if you are being used by a client to perpetrate a fraud, and, by analogy, any other crime. The common law has long recognised that information of an iniquitous nature cannot be confidential. In Gartside v Outram [1857] 26 LJ Ch (NS) 113, the Court held:

...there is no confidence as to the disclosure of an iniquity. You cannot make me the confident of a crime or fraud, and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part."

Unless your client gives consent to disclosure, confidential information may only be disclosed where the law permits e.g. by statute. For example, in some circumstances you will be required by law to disclose the potential commission of a criminal offence by your client, such as money laundering. You will also have certain powers or duties to disclose matters to the Courts in relation to proceedings or to third parties where they are lawfully acting on behalf of a client, such as an attorney appointed under a power of attorney or a Court appointed Deputy where the disclosure falls within the scope of their authority.

Disclosure of confidential information which is unauthorised by the client or by the law could lead to disciplinary action against you and could also render you liable, in certain circumstances, to a civil action arising out of the misuse of confidential information. A solicitor who volunteers confidential information must be prepared to show powerful justification for breaching the client’s confidentiality.

Circumstances in which disclosure may be justified for conduct purposes

We would not want concerns about possible regulatory action to prevent solicitors raising concerns when it is in the public interest to do so in order to protect their client or others. The guidance below has been developed over a number of years and sets out circumstances which we are likely to consider mitigates a breach of your duty in conduct in order to prevent an event which could lead to harm to the client or a third party. They do not allow for disclosure after the event. In the circumstances described there will be a breach of your duty but from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action.

Where a client has indicated their intention to commit suicide or serious self harm

Where you believe the client is genuine in their intention to commit suicide or serious self harm and there is no other way of dealing with the issue, you should consider seeking consent from the client, if appropriate, to disclose the information to a third party so that help might be given. e.g. to a ward nurse where the client is in hospital. Where it is not possible or appropriate to get consent you may decide, to protect the client or another, to disclose that information without consent.

Preventing harm to children or vulnerable adults

There may be circumstances involving children or vulnerable adults where you should consider revealing confidential information to an appropriate authority. This may be where the child or adult in question is the client and they reveal information which indicates they are suffering sexual or other abuse but refuse to allow disclosure of such information.

Similarly there may be situations where the client discloses abuse either by himself or herself or by another adult against a child or vulnerable adult but refuses to allow any disclosure. As noted above, the examples discussed do not allow for disclosure after the event, however you may have reason to be concerned about the risk of future harm.

You are not required by law to disclose this information. You must therefore consider whether the threat to the person’s life or health is sufficiently serious to justify a breach of the duty of confidentiality.

Preventing the commission of a criminal offence

You may well be able to disclose information to prevent the commission of a future criminal offence by applying the principles discussed above: there is no confidence in an iniquity and communications that further a criminal purpose are simply not privileged.

Notwithstanding the above, if there is a breach of your duty of confidentiality,that may be mitigated if you have disclosed confidential information to the extent that you believe it necessary to prevent your client or a third party from committing a criminal act that you believe, on reasonable grounds, is likely to result in serious bodily harm. You will need to balance the duty of confidentiality to your client with the public interest in preventing harm to others and will need to consider carefully the information available to you and whether this clearly identifies a proposed victim or is sufficiently detailed or compelling for you to form an opinion that a serious criminal offence will occur.

Before disclosure

In considering disclosure you should have in mind the absolute nature of legal professional privilege and the fundamental nature of the duty of confidentiality and remember that the circumstances in which confidentiality can be overridden are rare.

If you are considering the disclosure of information without your client’s consent, you should always

  • consider whether the appropriate course is to discuss your concerns with the client in order to gain agreement to steps to prevent the harm which is worrying you.
  • carefully consider the most appropriate person to disclose your concerns to, for example, a family member, the client’s doctor, social worker, police or other public authority.
  • limit the amount of information being disclosed to that which is strictly necessary.
  • keep a careful attendance note detailing your concerns and the factors that you considered prior to making the disclosure. This should include the reasons why you considered that it was not appropriate or practicable to obtain your client's consent to the disclosure.
Telling your client about the disclosure

You may have discussed the disclosure with your client in advance, as part of the process of seeking consent. However, in any event having made the disclosure to the appropriate party, you should assess whether it is appropriate to disclose to the client the fact that you have passed confidential information to a third party. Your fiduciary duty to clients makes your position very difficult if you have disclosed their confidential information to others without their consent. Where you believe that disclosure would result in risk of harm to your client or a third party, or would prejudice an investigation, you may feel it would not be appropriate to inform the client.

An example of such a circumstance would be where, in a family law case, your client has disclosed that, should the mother be successful in obtaining a residence order for the children, he will murder her. You, believing this to be an earnest intention, make a disclosure to the police to prevent the event. Such a communication from a client would be confidential in that it would not be appropriate to disclose it generally, but could be disclosed, carefully and proportionately, to a proper authority such as the police. Having done so, you would normally both wish and need to cease acting for the client.

Further help

The issues arising from the situations described in this note raise significant legal as well as professional conduct issues. If you require further assistance with understanding your professional conduct obligations in relation to the above please contact the Professional Ethics team. For any legal advice as to legal professional privilege and your legal duties, you are advised to speak to a colleague who specialises in this area.

Notes

1. R v Manchester Crown Court ex parte Rogers [1999] 1 WLR 832

2. Which include SRA Principles 1, 2, 4 and 6 that you must:

  • 1. Uphold the rule of law and the proper administration of justice
  • 2. Act with integrity
  • 4. Act in the best interests of your client
  • 6. Behave in a way which maintains the trust that the public places in you and in the provision of legal services

 

3. Seager v Copydex [1967] 2 All ER 415

4. Saltman Engineering Co Limited v Campbell Engineering Co Limited [1948] 65 RPC 2013 at paragraph 215