Are there any exceptions to the rule of confidentiality?
There are a number of exceptions, which are:
- To prevent the commissioning of a serious criminal offence
Guidance to Rule 4 of the old solicitors’ code of conduct (2007)
set out a test which could be applied to establish what amounts to
a serious criminal offence. Disclosure could be made “to prevent
the client or a third party committing an act that you reasonably
believe is likely to result in serious bodily harm”. An example may
be if a client made threats to kill another party, and you have
reasonable grounds to believe there is a risk the client might
attempt to carry out that threat.
A number of statutes empower government and other bodies, for
example HM Revenue and Customs to require any person to disclose
documents/information. If you are unable to gain your client’s
specific consent, you should ask under which statutory power the
information is sought and consider whether any information is
privileged and protected from disclosure. (See the Legal Professional Privilege
question).
There are reporting requirements in relation to money laundering
which override the duty of confidentiality. These are set out in
the Proceeds of Crime Act 2002 and the Money Laundering Regulations
2007. This would be relevant if you suspect your client of money
laundering or using the proceeds of a crime during or after working
on a particular file. CILEx will be publishing some anti-money
laundering guidance shortly.
You should reveal matters which may otherwise be subject to the
duty of confidentiality if a Court orders such matters to be
disclosed, or where a warrant permits a police officer or other
authority to seize confidential information. In this case the Court
order or warrant would permit disclosure with or without your
client’s consent.
Occasionally you may be asked by the police or a third party to
provide them with information or show them documents which you have
obtained during the course of acting for a client. Unless your
client is prepared to waive confidentiality or you consider you
have strong evidence that your client has perpetrated a fraud or
other crime, you should insist upon receiving a witness
summons.
You should always check whether the police want you to approach
your client to request consent to disclose their confidential
information. If you approach them, they will be on notice of the
police investigations. If the police do not want you to approach
your client, it is likely they will need to provide a witness
summons, provide a warrant to seize information or apply to the
court for an order that such matters be disclosed.
- Freedom of Information Act 2000
This is more likely to apply if you work in Local Authorities or
other government bodies. Guidance should be sought from the
Information Commissioner’s
Office.
Where a client is publicly funded, there may be obligations to
report confidential information to the Legal Aid Agency (LAA). You
should check the contract or agreement between your firm and the
LAA.
- Disciplinary proceedings before CILEx Regulation or the
SRA
Client confidentiality does not apply where a member is the
subject of an investigation by CILEx Regulation or the SRA.
If your question is not answered, contact us via our dedicated customer service enquiry form.