Solicitor’s duty of confidentiality
Confidentiality is a fundamental principle of the solicitor-client relationship. Clients need to feel confident that they can disclose all relevant information to their solicitor without it being released to the public, and solicitors require all the relevant facts from their client in order to give the best possible advice. The duty of confidentiality is owed to former, as well as current, clients; and it also continues after the death of the client.
A solicitor’s duty of confidentiality is incorporated within Rule 1.04 of the Solicitor’s Code of Conduct 2007 (the Code), which imposes a core duty on solicitors to act in the best interests of each client. The duty of confidentiality is detailed under Rule 4.01 of the Code, which specifies that the solicitor (and his or her firm) “must keep the affairs of clients and former clients confidential except where disclosure is required or permitted by law or by [their] client or former client”.
What if a solicitor breaches Rule 4.01?
Any breach of Rule 4.01 will amount to a breach of professional conduct, for which the Solicitor’s Regulation Authority (SRA) may instigate disciplinary action. In addition, the solicitor may be sued for this breach of duty by their client.
When can confidential material be disclosed?
There are some exceptions to Rule 4.01, whereby information, which is subject to the duty of confidentiality, may be disclosed:
- if the client or former client authorises the disclosure;
- pursuant to a statutory duty, e.g. Proceeds of Crime Act 2002;
- if it is necessary to prevent the client or a third party committing a criminal act which is likely to result in serious bodily harm (this exception will not apply if the crime has already been committed);
- under a court order, or if a police warrant permits the seizure of confidential information;
- in certain circumstances when the client is publicly funded; and
- if the information is already in the public domain.
Given the importance of confidentiality, the Law Society recommends that a solicitor obtains legal advice if they are unsure as to whether to disclose confidential information.
Confidentiality and the duty of disclosure
The duty of confidentiality will often conflict with the duty of disclosure under Rule 4.02 of the Code, which imposes a duty on a solicitor to disclose to a client all information that is relevant to that client’s matter, regardless of the source of that information. For example, if a solicitor acted for a client in the sale of contaminated land and then a new client instructs the same solicitor to purchase that land, the solicitor will owe a duty of confidentiality to the former client and a duty to disclose the fact that the land is contaminated to the new client. In cases such as this, the duty of confidentiality always overrides the duty of disclosure.
To avoid situations like this, under Rule 4.03, a solicitor must not risk breaching confidentiality in relation to an existing or former client by acting or continuing to act for another client on a matter in which:
- that information might reasonably be expected to be material; and
- that client has an interest adverse to the first-mentioned or former client (e.g. if they are on opposing sides of litigation).
There are some exceptions to this rule, including if informed consent has been obtained from both clients and the prospective client knows that the solicitor holds, or may hold, material information in relation to their matter which the solicitor cannot disclose. More information about these exceptions can be found under Rules 4.04 and 4.05 of the Code.