What does a solicitor’s duty of confidentiality consist of?
If you instruct a solicitor on a legal matter, you will be required to tell them all the facts of your case and your solicitor must protect your confidential information.
This is a foundational feature of their relationship with you. The obligation exists as a matter of common law and conduct and is one of the professional principles laid down in section 1(3)(e) of the Legal Services Act 2007.
The duty to maintain your confidence arises in connection with the confidential affairs of:
- Prospective clients (before a formal retainer is put in place)
- Retained clients (after a formal retainer is put in place).
Your solicitor’s duty towards you continues after the retainer and even after your death.
Three principles apply to your solicitor’s duty of confidentiality towards you:
- Principle 3: they must not allow their independence to be compromised
- Principle 4: they must act in the best interests of each client
- Principle 6: they must conduct themselves in such a way that maintains the trust that the public has in them and their provision of legal services.
In addition to these principles, your solicitor must ensure that they achieve outcomes consistent with the Solicitors Regulation Authority (SRA) Code of Conduct. Specifically:
- Your solicitor must not act if there is a client conflict or a significant risk of a client conflict, unless special circumstances apply
- Your solicitor must keep your affairs confidential unless disclosure is required, permitted by law or you provide your consent
Your solicitor must have effective systems in place to enable them to highlight risks to your confidentiality and minimise them.
What is the duty of disclosure?
A solicitor’s duty of confidentiality towards you must be reconciled with their duty of disclosure under the law, which requires them to disclose information if the court orders.
The court has the power to order your solicitor to disclose (or allow inspection of) information or documents to the other side in order that justice is done.
The purpose of disclosure and inspection are to assist the court in:
- Clarifying the legal issues
- Evaluating the case
- Encouraging the parties to settle the dispute
- Administering justice.
In general, your solicitor must disclose any document in their possession that the court considers to be ‘standard disclosure,’ namely the documents on which your solicitor relies and which adversely affect the other side’s case or support another party’s case.
Your solicitor may be required to conduct a search for these documents, which must be a reasonable one taking into account:
- The nature and complexity of the case
- The volume and significance of documents
- The expense involved in searching for the documents.
A ‘document’ is any item that contains information, such as a tape recording, disc, database, email and so forth. Your solicitor is only required to disclose documents which are currently (or have been) in their control.
When is inspection not allowed?
There are certain circumstances where your solicitor is not required to disclose documents or allow inspection:
- Legal advice privilege: any confidential communications between you and your solicitor for the purpose of providing legal advice is privileged and not available for inspection by the other side
- Litigation privilege: any communication between your solicitor and a third party, such as a witness, is privileged provided it is for the purpose of you obtaining legal advice
- Without prejudice communications: these communications can help you and the other side to settle your dispute, therefore they are not permitted to be inspected by the other party
- Common interest privilege: these communications between you and a third party that relate to a common interest in the matter must not be inspected.
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