Confidentiality and disclosure

Confidentiality and disclosure are dealt with in rule 4 of the Solicitors Code of Conduct 2007 (as amended) and the provisions there replace, although largely replicate, those that were previously to be found in Practice Rule 16E. It covers:

• the basic duty of confidentiality (4.10)
• the duty to disclose information to clients (4.02)
• the duty not to put confidentiality at risk by acting (4.03)
• exceptions to the duty not to put confidentiality at risk (4.04 & 4.05)

The basic duty of confidentilaity is set out in rule 4.01 and states:

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).

However, there is another aspect to the duty contained in this rule and that is in effect the opposite of confidentiality – namely disclosure – and it is the dual aspect of the requirement which can place you and your firm potentially in a position of conflict (see Conflict of interests elsewhere on this web site)

The basic principal behind disclosure is that of ensuring that those for whom you act are aware of all information which is likely to be relevant or germane to them or the matter in which you are involved. This is set out in rule 4.02 which states:

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.

You will find the notes to rule 4 of assistance to you in determining when a duty of confidentiality arises. However, you should specifically bear in mind the following points:

• be conscious of the distinction between confidentiality and that of legal professional privilege. The former deals with the duty to keep all of a clients information confidential, however it was obtained, whilst the latter protects certain types of communication – for example correspondence between you and your client – from needing to be disclosed.
• the duty of confidentiality continues after the end of the retainer,
• the duty is limited to that information which you personally are aware of – there is no breach of the rule if someone else in the firm is aware of the information but you were not and you thus fail to disclose it,
• you may have a duty of confidentiality to a prospective client – even where that client does not subsequently instruct your firm. For this reason you must be very careful to undertake conflict checks at the earliest possible stage to ensure that you are not going to come into possession of information which your duty of disclosure would obliged you to reveal to an existing client.
• bear in mind that duty of disclosure relates only to information which is “material”. Whilst this word “material” is not defined as such, it can be taken to mean information which relates specifically to a client’s matter which you or your firm is dealing with and not simply to information which is or may be of passing interest.

From a practical perspective, therefore, firms should ensure:

• they have, and have made all staff aware of, policies dealing with confidentiality. This is a requirement which has become far more important under the amended Code of Conduct since now any member of staff could theoretically find themselves before the Solicitors Disciplinary Tribunal for breach of the Code of Conduct. Thus staff need to be warned, for example, not to discuss client matters with friends and family and not to discuss issues to do with work when in a social setting – such as in a restaurant or at their club.
• they have in place procedures for identifying potential conflicts and situations where taking on a client might put them under a duty to disclose confidential information.