Rule of confidentiality
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.
- Government Bodies
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).
- Money Laundering
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.
- Court Order/Warrant
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.
- Police investigations
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.
- Legal Aid Agency
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.
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