This Confidentiality Policy is relevant to all employees of Gaynham King & Mellor Solicitors.
General duty of confidentiality (para 6.3 of the code of conduct for solicitors)
Paragraph 6.3 of the Code of Conduct for Solicitors, RELs and RFLs and of the Code of Conduct for Firms (referred to collectively as ("the Codes") requires you to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.
Client confidentiality is of paramount importance. It is fundamental to the relationship of solicitor and client. It exists as an obligation both in law, having regard to the nature of contract retainer, and as a matter of conduct. All the information a solicitor discovers about a client in the course of a retainer is confidential, whether the information is also privileged is a separate legal issue.
This duty of confidentiality exists as an obligation under both common law and data protection legislation as well as being one of the core professional principles set out in section 1(3)(e) of the Legal Services Act 2007 and professional standards in our Codes.
The Courts have stated that the duty to preserve confidentiality is unqualified, in that it is a duty to keep the information confidential, not merely to take all reasonable steps to do so. It is not limited to the duty not to communicate the information to a third party. It is a wider duty not to misuse it, i.e. without the consent of a client or former client to make any use of it or to cause any use to be made of it by others otherwise than for the client's benefit. See Prince Jeffrey Bolkiah v KPMG UKHL.
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.
You will not have a duty of confidence 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 this nature cannot be confidential. For example, in Gartside v Outram  26 LJ Ch (NS) 113 it was said
"...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."
Gkm Solicitors have in place a policy to protect your obligations in relation to confidentiality. This will mean that any information supplied to us by clients is kept confidential in accordance with, as well as data protection law, any terms of engagement between us and the client. For example:
Information should not be passed to third parties without the client's consent. This includes via marketing materials (including contributions to law firm directories or league tables) or passing client details by way of referral.
Confidential information regarding one client should not be passed to another.
Consider limiting the confidential information that you obtain from the client before a conflict check has been carried out and it has been established that you can act. This minimises the risk of such information being inadvertently disclosed, within the firm.
We should also comply with any special restrictions imposed by law or the court on the passing of confidential information, for example in cases involving children.
As a regulated firm, all our staff members including support staff, consultants and locums, owe a duty of confidentiality to all clients and disciplinary proceedings may involve both the firm and employees.
We as a firm and our individual practitioners should note the need to distinguish professional obligations of confidentiality from the concept of legal professional privilege. Legal professional privilege can only be waived by the client (and not the firm). 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. This is an issue that should be raised and discussed with one of the Directors.
The issues around disclosure to us and legal privilege are dealt with in the SRA guidance on reporting and notification obligations.
The disclosure of clients' information with consent
Disclosure of information is only allowed where the client consents to it or it is permitted by law. Before approaching a client for consent, you should consider whether disclosure is necessary to proceed with a specific matter.
Consent to disclosure of confidential information must be clear, so that the client knows to whom their information should be made available, when and for what purpose. Where you have their general consent, it may still be appropriate to obtain the client's consent to a specific piece of information being disclosed as the issue arises, for example by sending them a draft letter to the opponent to approve.
However, whatever arrangements that you make for obtaining consent, the ultimate test will be that the client if asked would say "Yes I agreed to that information being disclosed for that purpose" rather than being surprised or concerned or not having understood.
Before seeking the clients consent you should consider
What is the purpose of the third-party access to data and can the purpose be achieved in other ways?
Should there be limitations on the access?
Are you satisfied that seeking the client's consent to disclosure would not harm the client's best interests?
When information is shared, we should consider any actions that can taken to mitigate the risks. This may include entering into a formal confidentiality agreement with the third party.
You must also obtain a signed and dated authority from the client which is to be retained on both the paper and the e-file.
When disclosure of client information is permitted by law
Disclosure may be permitted by law. For example, you may be permitted or even 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.
You have obligations to disclose certain information to the SRA - see their guidance on reporting and notification obligations for more details.
Other circumstances when disclosure of client information may be justified
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.
However, concerns about possible regulatory action to prevent solicitors raising concerns when it is necessary to prevent an event which could lead to harm to the client or a third party. The guidance below does not allow for disclosure after the event (i.e. once the circumstances justifying the disclosure have passed). However, in the situations described although there will be a breach of your duty, from a disciplinary point of view, the justification will be taken into account and is likely to mitigate against regulatory action by the SRA. You will also need to consider your other duties under law (for example data protection legislation).
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 themselves 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 4
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 and where it is not otherwise permitted by law, 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 an 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.
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.
The Freedom of Information Act 2000 applies to the majority of public bodies and to local authorities. This Act establishes a right to know the content of records held by certain public bodies subject to certain exemptions such as legal professional privilege. The legal professional privilege exemption is conditional and can only be relied upon where the public interest in maintaining the exemption outweighs the public interest in disclosing the information. In some cases, disclosure of matters which are on legal files may be required by law under the Act. The Information Commissioner’s website provides Awareness Guidance upon this area of the Act.
In proceedings under The Children Act 1989 we are under a duty to reveal experts’ reports commissioned for the purpose of proceedings, as these reports are not privileged. The position in relation to voluntary disclosure of other documents or solicitor-client communications is uncertain. Under 11.01, an advocate is under a duty not to mislead the court. Therefore, if you are an advocate, and have certain knowledge which you realise is adverse to the client’s case, you may be extremely limited in what you can state in the client’s favour. In this situation, you should seek the client’s agreement for full voluntary disclosure for three reasons:-
the matters the client wants to hide will probably emerge anyway;
you will be able to do a better job for the client if all the relevant information is presented to the court; and
if the information is not voluntarily disclosed, you may be severely criticised by the court.
If the client refuses to give you authority to disclose the relevant information, you are entitled to refuse to continue to act for the client if to do so will place you in breach of your obligations to the court.
You should reveal matters which are otherwise subject to the duty to preserve confidentiality where a court orders that such matters are to be disclosed or where a warrant permits a police office or other authority to seize confidential documents. If you believe that the documents are subject to legal privilege or that for some reason the order or warrant ought not to have been made or issued, you should normally, without unlawfully obstructing its execution, discuss with the client the possibility of making an application to have the order or warrant set aside. Advice may be obtained from the Professional Ethics Guidance Team.
In the case of a publicly funded client, you may be under a duty to report to the Legal Aid Agency information concerning the client which is confidential and privileged.
A Solicitor must not disclose a client’s address without the client’s consent.
Should any Solicitor or non fee earning member of staff have concerns regarding the client’s instructions and the spectre of having to ‘breach confidentiality’ is raised, then the matter MUST in the first instance be reported to a Director forthwith, and/or if that is not possible then advice MUST be sought from the Law Society/SRA and a full attendance note kept of the discussion and advice/information given. The attendance note is to be retained on the client’s file and a copy given to a Director.
It is incumbent on all members of staff not to talk about a client’s case within the public areas of the office whereby such conversation could be overheard by other clients and service users, and no case files should be left on the reception desk whilst they are being worked on so as to avoid the client’s identity being on display. Clients must be invited in to an interview room to discuss their matter in private.
There are reporting requirements in relation to money laundering which override the duty of confidentiality and these are set out in the Anti Money Laundering Regulations 2017. These often require difficult judgements to be made as to whether or not a situation has arisen which would require you to report information to the relevant authorities. You should, however, always be mindful of the importance of your duty of confidentiality to your client. If you are undertain as to whether you should report confidential information you should consider seeking legal advice or contact the Professionals Ethics Guidance Team for advice.
See also related guidance:
If you require further assistance with understanding your professional conduct obligations in relation to the above, please contact the Ethics Guidance Helpline. 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.