Nov 3, 2017

Safeguards against Breach of the Lawyer’s Duty of Confidentiality | M. Dugeri


It is commonly understood by lawyers that they are under a duty to protect confidential information relating to their relationship with clients. The law imposes on lawyers a strict obligation to safeguard client’s confidential information.  


Section 19 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 (“the Rules”) is explicit that “all oral or written communications made by a client to his lawyer in the normal course of professional employment are privileged”. Sub-section (2) goes on to provide that a lawyer shall not knowingly:

a. reveal a confidence or secret of his client; 

b. use a confidence or secret of his client to the disadvantage of the client; or

c. Use a confidence or secret of his client for the advantage of himself or of a third person unless the client consents after full disclosure.

It is to be noted that, like all rules of law, there are also exceptions to this rule. For instance, disclosure is permissible when required by law or a court order, or with the client’s consent. See section 19 (3) of the Rules. 

The lawyer’s duty of confidentiality has broad application. It continues after the representation ends and applies to information received about prospective clients as well. The duty not only forbids revealing information, but also proscribes a lawyer’s use of confidential information about a client to the disadvantage of that client. With regard to former or prospective clients, a lawyer may not use confidential information to the disadvantage of a former or prospective client unless that information has become “generally known.”

Generally, both the duty of confidentiality and the lawyer-client privilege encourage clients to trust their lawyers. The lawyer-client privilege, especially, encourages clients to tell his or her lawyers everything, though the duty of confidentiality does this as well. With complete information, lawyers can provide the best and most appropriate advice.

Notwithstanding its importance, few lawyers and law firms have put in place safeguards against the breach of this fundamental duty. It is often taken for granted by most lawyers and law firms that this duty would enforce itself, which is hardly the case.

As a lawyer or law firm, it is necessary to do a self-appraisal of the systems you have in place for managing clients’ confidential information and consider how you might improve them to create greater confidence from your clients and insulate yourself against potential liability for breach of the duty of confidentiality. 

The following are some pointers to remember about client confidentiality:

1. Don’t discuss business outside the office.

2. Never discuss one client’s business with another client.

3. Beware of water cooler conversations. Can your chatter with the client at court premises be overheard by other clients or lawyers? 

4. Don’t talk to the press about your client’s business. Decline to answer if a reporter or blogger calls to ask if your firm is representing a particular person. Decisions about what to say to the press should be made by the client.

5. Remember the law is a profession, not merely a business. Clients pay good money for help with their problems. They deserve respect for their privacy.

6. Be especially cautious in office sharing arrangements. Beware “gossip” with employees of other firms. Keep case files segregated.

7. Remember that your duty of confidentiality continues even after the case is closed. It also continues after you leave the law firm.

8. Be wary when non-staff members want to use your office for ‘short meetings’ or ‘quick research’. Make sure no client files or documents are lying about carelessly or visible.

9. Never release information to callers such as a client’s accountant or business associates or partners without authorization.

10. Be careful when disposing of confidential papers, including rough drafts or duplicates. Use shredders or other secure disposal methods for sensitive materials
.
11. Never forget that the attorney-client relationship is built on mutual trust and confidence. Clients come to you expecting a form of sanctuary. You must honour that.

12. Put in place secured means of storage of clients’ files and communication with clients.

The law office is an exciting place. The lawyers and support staff are privy to information others don’t have. You learn interesting things about prominent people. Resist the temptation to share this information with outsiders, including friends and family. The duties of client confidentiality are broad. It is not limited to merely what the clients tell you. It also precludes unauthorized discussions of case strategy or evidence.

Loose lips sink ships - and might well lead to ethical and malpractice problems. Every member of a law firm, from senior partner to the litigation clerk, is under a strict obligation to protect the privacy and secrets of clients. Rule 19 (4) provides that:

“A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client, but a lawyer may reveal the information allowed by sub-rule (3) through his employee.”

A good idea is for firms to require all employees to sign confidentiality forms, which are placed in their personnel files. A blank copy of the form should be included in the office manual. It should be very clear to every member of staff that disclosure of a client confidence is a serious offence punishable with termination/dismissal. Breach of client’s confidentiality may prove very costly to the lawyer’s business and reputable, and leave him open to liability from the client and other third parties. It is better to be safe than sorry.

By Michael Dugeri
Commercial Lawyer at Austen-Peters & Co.
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