CONFIDENTIALITY
BY KIRBY JOSEPH

The general rule is that where there exists in each and every retainer an attorney/client relationship, all information or communication received during the course of employment must be kept confidential by the attorney and his staff regardless of whether the matter relates to the obtaining of legal advice.

CODE OF ETHICS

COE Part A 23 (2): An atty shall guard and never divulge his client’s secrets and confidences.
COE Part B 15: The duty of confidentiality extends to the atty’s staff and other attys assisting him on the matter.

Communications in furtherance of a criminal purpose:
C v C: Communications which were used in furtherance of a criminal purpose or was intended to be used in furtherance of a criminal purpose does not constitute professional employment. [Not covered by legal professional privilege.]

WAIVER

Waiver of confidentiality can only be done by the client either expressly or impliedly.

Butler v Board of Trade – Test of confidentiality-

Proceedings were instituted by defendants, a department of the Crown, against plaintiff.

Plaintiff sought to have the court declare that the defendants were not entitled to produce the copy letter in evidence at the trial. An interlocutory relief could not be granted against the defendants. It had to be shown [test] whether there was any equity to grant a declaration at the trial.

2. it would not be a right to prevent the defendants from bringing forward such evidence just because the plaintiff has a right in equity to restrain a breach of confidence. The defendant’s interest and duty outweighs the interest of the plaintiff.

NB: A copy of a document is not protected under privilege but is protected under the doctrine of attorney/client confidentiality.

The affidavit contained telephone conversations between the father and herself. The affidavit recorded that the father had become abusive and extremely angry and had threatened to “rip someone’s throat out”. The affidavit was served onto the mother’s solicitors who had then passed it to her.

On appeal by the mother--

Held,
allowing the appeal, that communications which were criminal in themselves or intended to further any criminal purpose were not covered by legal professional privilege;

to section 43(1)(a) of the Telecommunications Act 1984 as amended by section 92(1) of the Criminal Justice and Public Or-der Act 1994,
and since the threat to rip someone's throat out could be construed as a threat to kill contrary to section 16 of the Offences against the Person Act 1861, the communications were criminal in themselves; and that, accordingly, the affidavit should be admitted in evidence.

HRH Prince Jefri Bolkiah v KPMG [1998] EWCA Civ 1563-

2. Where a conflict of interests arises because the attorney has information about the former client that may be relevant or likely to be used in the current matter for the new client, the court will intervene to ensure that no information is divulged by the attorney.

THREE POINTS TO NOTE FROM THIS CASE

2. Such a risk exists inevitably where relevant confidential information has been provided to a modern practice, and

Koch Shipping Inc v Richards Butler
(a firm)

The mere fact that it is contended that a solicitor would inadvertently let slip some confidential information was fanciful especially when it was accepted by the respondent (the former client) that she was a solicitor of integrity who was aware of her obligations.

There must be cogent and compelling evidence indicating a conflict. As such it does not mean that con-confidential information would be disclosed.

A Chinese wall is a business term describing an information barrier within an organization that was erected in order to prevent the disclosure of information/communication obtained while in the em-ploy of a client that could lead to conflicts of interest.

HOLs stated that the information barrier would need to be part of the organisational structure of the firm and not merely erected ad hoc and around a single department, as had been done at KPMG. KPMG had simply failed to discharge this heavy burden, according to their Lordships.

The Chinese Wall operates in conjunction with the following organisational arrangements: physical separation of the various departments in order to insulate them from each other, disciplinary sanctions where there has been a breach of the wall.

The plaintiff’s commenced an action for negligence and breach of contract against the auditors, PKF. The assistance of forensic accountants-RR-in pursuing the action was needed.

The plaintiffs subsequently commenced proceedings against RR, claiming, inter alia, that the latter had acquired confidential information relating to the proceedings against PKF, and that there was a risk that some of that information would pass to PKF if the merger went ahead.

The plaintiffs contended that an ad hoc arrangement after the event was inadequate, and that their interests could be protected only by prohibiting all direct and indirect contact, professionally and socially, between the team and the relevant PKF personnel.

THIS CASE HELD:

However in this case, the proposed information barrier did not go far enough since there would be a risk of inadvertent leakage of confidential information if members of the team worked alongside the PKF personnel involved in the actions, or were in regular contact with them. However, an injunction restraining the merger would inflict unwarranted harm on both firms and would be of no benefit to the plaintiffs.

THREE THINGS TO NOTE IN RELATION TO CONFIDENTIALITY WITHIN A FIRM:

REMEDY

Lewis v Smith

An injunction was ordered against a solicitor restraining him from divulging any information and or communication (including any evidence or documents) he may have attained during his professional employment with a former client A to a current client B who was suing the former client A. The solicitor was now employed by Client B.

A breach of the duty in respect of confidentiality may render the attorney liable in a civil suit and to disciplinary proceedings.

The plaintiff brought an action for an injunction to restrain the defendant from disclosing the letters or the copies. It was held that the fact that the copies, although wrongfully obtained, could be used as secondary evidence in the bankruptcy proceedings, it made no difference to the plaintiff's right to an injunction restraining the defendant from divulging their contents; and, therefore, the plain-tiff was entitled to an unqualified injunction.

Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information, and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it.