A question for solicitors regarding confidentiality

A question for solicitors regarding confidentiality

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IanA2

Original Poster:

2,762 posts

161 months

Saturday 8th November 2014
quotequote all
In the case of someone (the client) represented by a union funded lawyer, what duties does the solicitor have to the client in regard to confidentiality.

If for example a situation arises which is remotely, but tangentially, relevant to the client's case who specifies that the information is confidential and should not be passed to the union.

In that situation, does the solicitor have a duty of confidentiality to the client or are they obliged to inform, or not withhold that information from the union?

Any ideas?

Thanks

Bigyoke

152 posts

131 months

Saturday 8th November 2014
quotequote all
AFAIK legal advice and any communication regarding an ongoing case is subject to legal privilege and shouldn't be revealed to anyone.

However if the Union funding is conditional on certain things, and this information would break those conditions would the solicitor be professionally obliged to stop representing the client?

IanA2

Original Poster:

2,762 posts

161 months

Saturday 8th November 2014
quotequote all
Bigyoke said:
AFAIK legal advice and any communication regarding an ongoing case is subject to legal privilege and shouldn't be revealed to anyone.

However if the Union funding is conditional on certain things, and this information would break those conditions would the solicitor be professionally obliged to stop representing the client?
Not sure I quite understand what you are saying.

To clarify, the information given was perfectly proper, and in no way fettered the solicitors actions, nor was it in any way derogatory to or of direct relevance to the union concerned. Ergo, the information in itself would break no conditions.

The issue is whether the solicitor was bound to disclose it to the union or if it should have been, as the client requested, kept confidential.

Bigyoke

152 posts

131 months

Saturday 8th November 2014
quotequote all
I think the first point is fairly clear is it not? The second point was more a question for the legal bods on PH. Would the union withdraw their support if they were made aware of this information? If it would, and the solicitor knew this, would they be obliged to withdraw from the case?

IanA2

Original Poster:

2,762 posts

161 months

Saturday 8th November 2014
quotequote all
Bigyoke said:
I think the first point is fairly clear is it not? The second point was more a question for the legal bods on PH. Would the union withdraw their support if they were made aware of this information? If it would, and the solicitor knew this, would they be obliged to withdraw from the case?
Sorry if I had not made it clear. The information has no relevance to the union whatsoever. It was information that was not relevant to them. It could in no way make them withdraw from providing the member support.

The issue is whether having indicating that information was given in confidence, should the solicitor relay it to the union, or would this be a breach of professional standards?

agtlaw

6,680 posts

205 months

Saturday 8th November 2014
quotequote all
If the confidential info is mentioned in open court then it is no longer confidential and can be disclosed.

You are the solicitor's client and therefore the solicitor has a duty of confidentiality to you - this is unaffected by a third party (the union) paying the bill.

IanA2

Original Poster:

2,762 posts

161 months

Saturday 8th November 2014
quotequote all
agtlaw said:
If the confidential info is mentioned in open court then it is no longer confidential and can be disclosed.

You are the solicitor's client and therefore the solicitor has a duty of confidentiality to you - this is unaffected by a third party (the union) paying the bill.
Thanks for that, it is highly unlikely that the information would be used in legal process, and in any event, if it were it would probably be unproblematic.

You seem to be saying that if the solicitor is specifically asked to keep the matter confidential, then it should be kept confidential, which was what I thought. I was therefore somewhat surprised when by return I was forcibly informed by the solicitor that they could withhold nothing from the union.

An agreement was reached to the effect that they agreed not draw the union's attention to the matter, but that they would not withhold it from them as the union had complete access to the case file by request.

At the time I thought that perhaps that was a consequence of them having "two masters", but I think, from what you are saying, it is something that the SRA might have a view on. Is that about right?


IanA2

Original Poster:

2,762 posts

161 months

Sunday 9th November 2014
quotequote all
A separate question, but in the same (ish) area.

Supposing an employer charges a firm of solicitors with the task of getting rid of an employee. For the sake of this example let us suppose that the solicitors concerned accept the task and go about it with vigour using all sorts of tricks and strategies designed to get rid of said employee. For example, by way of a creative, but sham, redundancy situation.

In these circumstances, let us suppose that the employee then takes the matter to an ET. Clearly the employer will attempt to defend the claim, but what interests me is how the solicitor instructs the barrister.

I'm presuming they don't say, "Well we did everything we could to get rid of X" and come clean regarding the full extent of their involvement. Rather, I imagine they will paint a picture that they know to be both false and incomplete. So my question/issue is this; in this hypothetical situation, are the solicitors breaking any professional code in behaving in this manner, or is it just a another day in the life of an employment lawyer?

Thanks.

IanA2

Original Poster:

2,762 posts

161 months

Monday 10th November 2014
quotequote all
For those interested I have spoken to the ethics folks at the SRA.

In relation to my first question, their view is that there is a duty of confidentiality to the client, however, this can be overridden by the contractual basis upon which the third party provides the funds.

That said, they say they take a dim view of blanket clauses.

Well that's cleared that up.

Still not sure about the answer to my second question. Any ideas?

agtlaw

6,680 posts

205 months

Monday 10th November 2014
quotequote all
Interesting reply, I had been thinking about the contract (e.g. motor insurance legal cover - similar to trade union cover I suppose) and also the terms in the retainer letter from the firm. If unhappy then can you change solicitors and still have the case funded?

IanA2

Original Poster:

2,762 posts

161 months

Monday 10th November 2014
quotequote all
agtlaw said:
Interesting reply, I had been thinking about the contract (e.g. motor insurance legal cover - similar to trade union cover I suppose) and also the terms in the retainer letter from the firm. If unhappy then can you change solicitors and still have the case funded?
No chance, it's Hobson's choice. Raises quite a few issues though.

Any thoughts/ideas on my second question?

Jasandjules

69,825 posts

228 months

Monday 10th November 2014
quotequote all
What does the take on form say about disclosing information to the Union? In theory, it legal priviledge resides with you and not the solicitor, therefore it is not for the solicitor to disclose anything regarding their advice without your consent. However I suspect the take on form says the Union must be given all information and in particular anything which may affect their decision to fund the claim.

IanA2

Original Poster:

2,762 posts

161 months

Monday 10th November 2014
quotequote all
Jasandjules said:
What does the take on form say about disclosing information to the Union? In theory, it legal priviledge resides with you and not the solicitor, therefore it is not for the solicitor to disclose anything regarding their advice without your consent. However I suspect the take on form says the Union must be given all information and in particular anything which may affect their decision to fund the claim.
That's also what I think and when I can locate a copy of their terms I'll respond. Meantime I think the interesting point is that the SRA ethics folks take a dim view on blanket clauses regarding confidentiality.

At the risk of repetition, the matter at issue in no way would affect the position regarding continuation of their funding the process.

IanA2

Original Poster:

2,762 posts

161 months

Thursday 20th November 2014
quotequote all
IanA2 said:
A separate question, but in the same (ish) area.

Supposing an employer charges a firm of solicitors with the task of getting rid of an employee. For the sake of this example let us suppose that the solicitors concerned accept the task and go about it with vigour using all sorts of tricks and strategies designed to get rid of said employee. For example, by way of a creative, but sham, redundancy situation.

In these circumstances, let us suppose that the employee then takes the matter to an ET. Clearly the employer will attempt to defend the claim, but what interests me is how the solicitor instructs the barrister.

I'm presuming they don't say, "Well we did everything we could to get rid of X" and come clean regarding the full extent of their involvement. Rather, I imagine they will paint a picture that they know to be both false and incomplete. So my question/issue is this; in this hypothetical situation, are the solicitors breaking any professional code in behaving in this manner, or is it just a another day in the life of an employment lawyer?

Thanks.
Disappointed not to have had any input on the above.

Perhaps I could reframe the issue.

A public sector employer retains a firm of solicitors to act effectively as their HR department. Said solicitors are given instructions to get rid of an employee. They embark on a strategy, some of it fictitious, and all of it with the sole purpose of ridding their client of "a problem". They are successful and the employee is sacked.

The employee issues proceedings.

The solicitors who engineered the departure are of course retained to fight the case.

Barrister X is then briefed, by the solicitor, on behalf of their client to defend the case. The solicitor is somewhat economical with the actuality in so briefing as the extent of their involvement would, I would have thought, send any honest barrister running to the hills.

So my question is this. In acting as the firms HR and hiding behind "legal privilege" and not disclosing their full involvement, are they acting unethically? Or is it that am I just being naive as that this is an everyday story of modern life in the public sector?



mcflurry

9,079 posts

252 months

Thursday 20th November 2014
quotequote all
I'm slightly confused..

If the solicitors are on the employers "side", then why would they assist the case from the sacked employees point of view?


IanA2

Original Poster:

2,762 posts

161 months

Thursday 20th November 2014
quotequote all
mcflurry said:
I'm slightly confused..

If the solicitors are on the employers "side", then why would they assist the case from the sacked employees point of view?
It's not simply an issue of "sides". The question is about ethics, there are rules, even for lawyers!

belly2002

365 posts

194 months

Thursday 20th November 2014
quotequote all
IanA2 said:
It's not simply an issue of "sides". The question is about ethics, there are rules, even for lawyers!
I have to say that if you're after a response from 'legal bods', (read 'lawyers') then your statement above might not help you all that much.

I am not a lawyer, but can tell you this. Solicitors are heavily regulated by the SRA, who have significant power in relation to breaches of the rules. Those rules are found in the SRA Code of Conduct 2011. It begins with 10 overriding principles, which pervade the rest of the code. Principle number 2 is that solicitors must act with integrity. And solicitors also have a fiduciary duty to the court in general terms and Outcome 5.1 of the Code forbids knowingly or recklessly misleading of the court.

In your (hypothetical, I'm sure) questions, 'tricks', 'shams' and 'fictitious strategies' sound like things that could well offend the principle of acting with integrity.

In regard to instructions to counsel, solicitors could not lie, clearly, as this would offend all of the above. In litigation, the employee's particulars of claim would make all the allegations against the employer relevant to the case and the defence would have to answer them, as not addressing an allegation is generally taken as an admission. As such, being so economical with the truth when giving instructions so as to end up with a half truth (as I take you trying to imply above) isn't really an option - it won't get them very far when defending a claim.

If real solicitors have really acted exactly in the way you describe/hint at, you can think about reporting to the SRA. But I would respectfully suggest that if you only know half the facts to the situation you ask about, the unknown half may well be more relevant than you think!


IanA2

Original Poster:

2,762 posts

161 months

Thursday 20th November 2014
quotequote all
belly2002 said:
I have to say that if you're after a response from 'legal bods', (read 'lawyers') then your statement above might not help you all that much.

I am not a lawyer, but can tell you this. Solicitors are heavily regulated by the SRA, who have significant power in relation to breaches of the rules. Those rules are found in the SRA Code of Conduct 2011. It begins with 10 overriding principles, which pervade the rest of the code. Principle number 2 is that solicitors must act with integrity. And solicitors also have a fiduciary duty to the court in general terms and Outcome 5.1 of the Code forbids knowingly or recklessly misleading of the court.

In your (hypothetical, I'm sure) questions, 'tricks', 'shams' and 'fictitious strategies' sound like things that could well offend the principle of acting with integrity.

In regard to instructions to counsel, solicitors could not lie, clearly, as this would offend all of the above. In litigation, the employee's particulars of claim would make all the allegations against the employer relevant to the case and the defence would have to answer them, as not addressing an allegation is generally taken as an admission. As such, being so economical with the truth when giving instructions so as to end up with a half truth (as I take you trying to imply above) isn't really an option - it won't get them very far when defending a claim.

If real solicitors have really acted exactly in the way you describe/hint at, you can think about reporting to the SRA. But I would respectfully suggest that if you only know half the facts to the situation you ask about, the unknown half may well be more relevant than you think!
Thanks, point taken, but in fairness not too many legal sorts have put forward views and in any case, the ethical sorts would be appalled I would think if what I described is true.

My gut feeling is that it could be something that the SRA would be interested in, but I'm genuinely interested in the professionals view. This is because if this type of behaviour is rife, then it's quite possible that it could be one of these "tolerated grey areas". I've had some very interesting explanations of behaviour before!

Going to a regulator (of any sort) with a complex issue is a draining activity and you have to be prepared for a long and arduous hike. I have the teeshirt!


belly2002

365 posts

194 months

Thursday 20th November 2014
quotequote all
IanA2 said:
Thanks, point taken, but in fairness not too many legal sorts have put forward views and in any case, the ethical sorts would be appalled I would think if what I described is true.

My gut feeling is that it could be something that the SRA would be interested in, but I'm genuinely interested in the professionals view. This is because if this type of behaviour is rife, then it's quite possible that it could be one of these "tolerated grey areas". I've had some very interesting explanations of behaviour before!

Going to a regulator (of any sort) with a complex issue is a draining activity and you have to be prepared for a long and arduous hike. I have the teeshirt!
I really doubt the kind of behaviour you describe is rife; the solicitors involved would find themselves struck off the roll in no time! What I'd question in your particular situation is what the solicitors (as opposed to the employer) actually did.

PS The part of the code that governs your original question about passing on information received in confidence is Chapter 4. It imposes a duty of confidentiality to a client, which overrides the duty of disclosure to another. And I don't know of any exceptions to this on account of contractual provisions between the solicitor and the funder. Worth a read.

IanA2

Original Poster:

2,762 posts

161 months

Thursday 20th November 2014
quotequote all
belly2002 said:
I really doubt the kind of behaviour you describe is rife; the solicitors involved would find themselves struck off the roll in no time! What I'd question in your particular situation is what the solicitors (as opposed to the employer) actually did.

PS The part of the code that governs your original question about passing on information received in confidence is Chapter 4. It imposes a duty of confidentiality to a client, which overrides the duty of disclosure to another. And I don't know of any exceptions to this on account of contractual provisions between the solicitor and the funder. Worth a read.
Again thanks. In respect of original question I have spoken to the SRA. It's a murky area and unfortunately not as tight/clear as one would hope. That question relates to another firm of solicitors. I'm currently investigating the matter more fully and will post if/when a resolution/clarity is achieved.