Session 8Confidentiality and disclosure

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Contents

Part 1: Introduction

Part 2: The duty of confidentiality

Part 3: The duty of disclosure

Part 4: Confidentiality and conflict

Part 5: How to deal with confidentiality

Part 6: Obtaining client consent

Part 7: Safeguarding confidentiality

Part 8: Keeping records

Part 9: Instructions after a confidentiality issue arises

Part 10: Summary

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Introduction

Part 1

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Application of the policy

Who is covered?

All staff

Who is responsible for our policy?

Compliance officer for legal practice (COLP)

Urgent matters when COLP is not available—refer to their deputy /your line manager

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The duty of confidentiality

Part 2

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The duty of confidentiality

Client affairs must be confidential unless:

•disclosure is required or permitted by law

•the client consents

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Disclosure required or permitted by law

• Statutes

• Anti-money laundering reporting requirements

• Police and Criminal Evidence Act 1984

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Confidentiality v legal professional privilege

A right belonging to the client that:

• protects against disclosure of information

• cannot be overridden

• does not cover all confidential communications

• protects only communication under:

o advice privilege, or

o litigation privilege

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The duty of disclosure

Part 3

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The duty of disclosure

Clients must be made aware of all material information

UNLESS:

•client consents to non-disclosure

•a different standard of disclosure arises

•threat of injury towards a third party if disclosed

•legal restrictions prohibiting disclosure

•privileged documents mistakenly disclosed to us

•information relates to state security/intelligence

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Confidentiality and conflict

Part 4

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Confidentiality and conflict

Duty of confidentiality takes precedence

Permission to act depends on whether:

•there is a conflict of interest between the clients

•the respective clients have adverse interests

•the confidential information can be safeguarded

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Confidentiality and conflict (cont)

Scenarios where we hold material confidential information for:

1.existing client with adverse interest to our client on an unrelated matter

2.former client with adverse interest to our client

3.former or existing client with no adverse interest

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Confidentiality and conflict (cont)

Scenarios 1 and 2

Confidential information combined with an adverse interest

•For example, we receive confidential information about one client (C1) that is relevant to the other client (C2)

•Not a strict client conflict scenario but confidentiality requirements apply

•Safeguards and consent needed

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Confidentiality and conflict (cont)

Scenario 3

Confidential information without adverse interest

•We hold confidential information for existing client (C1) that matters to the other client (C2) but there is no adverse interest between C1 and C2

•Act for C2 if we safeguard C1’s confidential information. No requirement for C1’s consent

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How to deal with confidentiality

Part 5

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Conflict check reveals confidentiality issue

1. Fee earner emails COLP

2. COLP reviews and decide whether we can act, ie whether:

• we hold material confidential information

• there is adverse interest between clients

• there are reputational/commercial reasons for not acting

• we are able to safeguard information

3. You must not undertake any further work until the COLP has responded

Part 6Obtaining client consent

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Obtaining client consent

Where consent needed:

always obtain written consent

ensure client understands potential risks

if there is risk of prejudicing either client, consent should not be sought and we should not act

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The firm can act if:

informed consent obtained

clients’ confidential information safeguarded guarded

We must:

notify the COLP that all clients have consented

create an action plan monitoring file at fixed intervals

Difficulties with seeking client consent

Part 7Safeguarding confidentiality

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How do we implement safeguards?

Ring-fencing—ensure fee earners/teams are not involved with other clients

No overlap of management of the fee earners/teams that deal with each client

Access restrictions to confidential information imposed on relevant fee earners/teams

Physical separation of fee earners/teams dealing with each client

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How do we implement safeguards? (cont)

Password protect information on management system

Appoint supervisor for confidentiality of each client

System for incoming correspondence to prevent inadvertent sharing of confidential information

Signed statements from each fee earner/team member confirming understanding of duty and compliance

Part 8Keeping records

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Keeping records

How to report?Email or use the facility in Compliance Manager

What happens to the form?

It should be sent to the COLP, who maintains a register of decisions

Who reviews the reported matters?

COLP

Records are kept by means of reporting using the following procedure:

Part 9Instructions after a confidentiality issue arises

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Instructions after a confidentiality issue arises

Examples:

• nature of the client’s matter changes, meaning information we hold about other clients becomes material

• companies merge or are taken over

• individuals become incapacitated, die or assign their interest

• new staff member joins the firm and has material information about client from previous employment

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Instructions after a confidentiality issue arises (cont)

When there is a material change

•further conflict check

•report conflicts/confidentiality issues using Conflicts/Confidentiality form

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Instructions after a confidentiality issue arises (cont)

When we cease to act:

•ensure the issue is handled sensitively

•update clients with decisions or deadlines promptly

•possibly suggest a third party to take on client’s matter

•ensure our policy is not infringed when referring client’s matter to third parties

•comply with policy for introductions to third parties

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Summary

Part 10

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Summary

• Client’s information must be kept confidential unless disclosure is required by law or the client consents to disclosure

• Three reasons for disclosure: o statuteso reporting requirements relating to anti-money

laundering, and o the Police and Criminal Evidence Act 1984

• Duty of confidentiality must be distinguished from LPP

• Duty of confidentiality overrides duty of disclosure

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Summary (cont)

• Client consent must be obtained before we act

• Confidentiality issues are identified resulting from conflict check procedure

• The facility in Compliance Manager must be used to report and record any issues

• If confidentiality issues arise after instructions are accepted, a further conflicts check should be carried out

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Final comments

• Any questions?

• Email to nigel.harper@parfittcresswell.com

• Update your training records in Compliance Manager