FIDUCIARY DUTY : CONFIDENTIALITY

Question	Answer
CONFIDENTIALITY BY KIRBY JOSEPH	GENERAL RULE
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.	LAW
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.	Limitations on Duty: COE Part B 15: It further provides that the atty would only be able to disclose information where the Court so orders or when required by statute. Finers v Miro – Information may be disclosed by an order of the Court
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.]	As such the information is no longer kept confidential and can thus be disclosed as indicated by COE Part B 15
WAIVER Waiver of confidentiality can only be done by the client either expressly or impliedly.	TEST Butler v Board of Trade: the test is whether it has been shown that the communications in question were made in furtherance of or in preparation of some criminal or fraudulent purpose.
Butler v Board of Trade – Test of confidentiality- Proceedings were instituted by defendants, a department of the Crown, against plaintiff.	Defendants proposed to tender in evidence on behalf of the prosecution a copy of a letter written by the plaintiff's attorney to him before liquidation concerning the affairs of the companies.
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.	Held 1. the original letter was privileged and the copy confidential, because the contents of the letter could not be regarded as being in preparation for, or in furtherance or as part of, any criminal designs on the part of plaintiff;
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.	3. if the copy of the letter had been in the hands of a third party the court would in restraining the third party would have to subpoena such third party to produce the letter and the obligation to comply with that order; if defendants could subpoena a witness to produce the letter, they ought to be permitted to tender it in evidence themselves.
NB: A copy of a document is not protected under privilege but is protected under the doctrine of attorney/client confidentiality.	C v C (Privilege: Criminal Communications) - Telephone communications A father and mother were parties to matrimonial proceedings involving a four year old girl. On a preliminary issue the mother wanted to admit into evidence an affidavit sworn to by the father’s former solicitor.
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 the father's application for contact with the daughter the mother sought to adduce the affidavit in evidence in support of her allegations of the father's very violent and abusive attitude towards her. The father objected to the admission of the affidavit on the ground that the telephone conversations were covered by legal professional privilege.
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;	that, since the sending by means of a public telecommunications system of a message which was grossly offensive or of an indecent, obscene or menacing character was an offence contrary
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.	DUTY TO FORMER CLIENTS This is an issue of confidentiality and not a conflict of interest
HRH Prince Jefri Bolkiah v KPMG [1998] EWCA Civ 1563-	1. Even where a contract has come to an end, an attorney still owes a duty to their former clients to protect any confidential information they had received from them, an attorney should not accept instructions or take on other clients if there is a risk that that confidential information could be used or communicated for the benefit of someone other than the former client without the former client’s consent.
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.	Re a Firm of Solicitors [1992] 1 QB 959, pointed out that:
THREE POINTS TO NOTE FROM THIS CASE	1. A former client is entitled to prevent a firm of solicitors from acting in an adverse situation if there is any real risk (as opposed to a merely fanciful or theoretical risk) of the misuse of confidential information, whether deliberate or inadvertent,
2. Such a risk exists inevitably where relevant confidential information has been provided to a modern practice, and	4. the risk cannot be eliminated satisfactorily by the use of Chinese walls.
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.	Raul Alfonso v Mercantile Land Resources Limited & Southern Ridge Development Company Limited Just because an attorney performs previous litigation for a former client does not automatically give rise to an inherent conflict of interest.
There must be cogent and compelling evidence indicating a conflict. As such it does not mean that con-confidential information would be disclosed.	Confidentiality within a Firm- THE CHINESE WALL
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.	Prince Bolkian v KPMG (a firm): there is a presumption that information moves within a firm and unless special measures are taken to prevent disclosure of confidential information, the presumption will not be removed.
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 reality is that information does circulate within a firm and that simply putting up a rather flimsy and limited Chinese wall of the kind seen in Bolkian cannot be guaranteed to protect that information – or the client who has provided the information.
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.	Young and others v Robson Rhodes (a firm) and another- Chinese Wall Defendant planning to merge with other firm and proposing information barrier to prevent disclosure of plaintiffs' confidential information - Whether ad hoc arrangement could provide sufficient protection for confidential information.
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.	Fifteen months after RR was hired, the plaintiffs were informed that RR was planning to merge with PKF and that it would not be able to act for them in the action if the merger went ahead.
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.	RR offered to erect a 'Chinese wall' to prevent the flow of such information, but did not propose the physical separation of the PKF personnel involved in the ac-tions from the three-strong RR team which had worked for the plaintiffs (the team).
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.	In the absence of an undertaking to that effect, the plaintiffs sought an injunction restraining the merger until completion of the actions against PKF. RR contend-ed, inter alia, that the risk of inadvertent disclosure was fanciful in view of the small size of the team and the proposed information barrier.
THIS CASE HELD:	the crucial question was whether the ‘Chinese wall’ barrier would work. Thus, if the barrier was effective, it did not matter whether it had been created before or after the problem had arisen.
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.	Moreover, the risk of disclosure at social events would be fanciful if the team was physically separated from, and had no professional contact with, the PKF per-sonnel involved in the actions, and thus it was not necessary to ban social con-tact. Accordingly, the merger could proceed, but for the duration of the actions against PKF no member of the team would be allowed to work in the same premises as any PKF personnel involved in those actions, or have any professional contact with such persons
THREE THINGS TO NOTE IN RELATION TO CONFIDENTIALITY WITHIN A FIRM:	1. Where a retainer has ended, there is a continuing confidentiality duty to a client following the end of attorney/client relationship. 2. Where a firm has previously acted for a party A and acts for a party B with an interest adverse to party A, the court would inter-vene to protect disclosure of confidential information. 3. There is a presumption that information moves within a firm and unless special measures are taken to prevent disclosure of confiden-tial information, the presumption will not be removed.
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.	BREACH OF DUTY OF CONFIDENTIALITY
A breach of the duty in respect of confidentiality may render the attorney liable in a civil suit and to disciplinary proceedings.	Lord Ashburton v Pape The defendant wrongfully obtained letters written by the plaintiff to his solicitor. The letters were therefore privileged. The defendant copied them, and retained the copies so that he could use it as evidence in the bankruptcy proceedings GOING ON.
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
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.	THE END

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FIDUCIARY DUTY : CONFIDENTIALITY

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	Created by Kirby Joseph almost 9 years ago