A question for solicitors regarding confidentiality

[IanA2]

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

[IanA2]

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.

[IanA2]

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?

[IanA2]

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]

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]

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?

[IanA2]

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?

[IanA2]

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]

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?

[IanA2]

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!

[IanA2]

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!

[IanA2]

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.

[IanA2]

I have to say the general silence on this one makes me feel like I've farted in a lift.

If any legal sorts have an opinion that they would like to express anonymously/privately, I'd be very grateful.

Health permitting, I'm approaching the SRA again next week and really would be grateful for some kind of keystone to help.

I have had some opinions already but they are from folks close to the action and possibly, in the nicest way, a wee bit biased. I'm looking for uninvolved cold views.

Many thanks.

[IanA2]

Breadvan72 said:

Your question has already been answered. The solicitor owes professional duties to the client, not to the funder.

That was question one, which in fact, according to the SRA is not quite that clear cut. When I'm confident I have enough written evidence, which I'm working on, I will pursue the matter formally although I suspect there's too much wiggle room for a satisfactory resolution.

The second question is more complex, and which I feel, rightly or wrongly, will oscillate around normative versus pragmatic practice.

Thanks

[IanA2]

Breadvan72 said:

IanA2 said:

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?

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

The matter revolves around a little more than advising I think. They have effectively strategised the campaign, undertaken some fairly dodgy manoeuvres, ignored & subverted some statutory rights and rid the employer of their problem. They have run as a sub-office of the employer and are accordingly behind the curtain of privilege.

My point regarding the barrister, is that if the solicitors did come clean as to the extent of their involvement, I do not think a barrister would be able to accept their case. One has, therefore I believe they have been economical with the extent of their involvement.

As I said before, perhaps this is an everyday story of career destruction and I am just a tad naive.

[IanA2]

Breadvan72 said:

Privilege would apply to any dealings between lawyer and client anyway. If an employer wants to have a law firm handle its HR, it can. Frankly, you would do better fighting your case on its merits rather than obsessing about your opponent's lawyers. If anything unlawful was done, ask a tribunal or court to rule on it.

I understand privilege. In this instance I think it is being abused. I am interested in the relationship between the instructing solicitor and the barrister, and what professional obligations of candour and full disclosure the solicitor has to the barrister.

I don't think I'm obsessing, sorry if you think I am. The case will be fought on merits and a ruling will be made. I am sure however that you are aware of the difficulties inherent in PIDA which tends to concentrate of the sequelae of raising safety issues, and not the cause.

Hopefully your friend Sir Robert will address this problem in the process when his Freedom to Speak Up Review is concluded and published.

Meantime I'll let you know what the SRA have to say.

[IanA2]

williaa68 said:

The solicitor and barrister both owe duties to the court, but there isnt a "duty of full disclosure" between solicitor and barrister. If i choose to send a brief to bredvan, he advises on the brief he gets. If the brief he gets is cr*p or incorrect, the client's remedy is to sue me in negligence. It is common for solicitors to brief counsel to advise on a set of facts or circumstances without naming, in the example here, the employer, precisely to avoid a conflict of interest arising.

And candour...?

[IanA2]

desolate said:

[quote=IanA2


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?

The fact that the solicitors advised in relation to the dismissal is neither uncommon nor unethical.

How do you know what the solicitors told the barrister?

As I said before, perhaps this is an everyday story of career destruction and I am just a tad naive.

What the other side's solicitors told the barristers isn't really relevant. It would take a fairly unusual set of circumstances for a Barrister to "run for the hills". A barrister will defend a losing case to the best of his ability if that is what the client wants.

You can ask for full disclosure of all the relevant documents well before you get to trial.

_____________________________________________________________________________________________________________________

Part of my concern is that there will not be full disclosure as the strategies and shenanigans will be privileged. Had the matter been dealt with by HR, then yes, then disclosure would be revealing.

Let me put my concern about briefing another way.

Having got rid of the "problem employee" does the solicitor say to the barrister, "we think the claimant has well founded detriment claims, we know this because we fabricated them and the employer implemented them with relish".

Or do they say, "the claimants claim is weak as our client acted throughout with integrity and implemented their policies throughout in utmost good faith".

It seems to me that if the solicitors do have a duty to the court then it should be the former, but I am pretty certain it will be the latter.

[IanA2]

Breadvan72 said:

It's not unlawful for an employer to act according to its own best interests, to take advice, or to have a strategy. If you have distinct grounds for alleging a breach of any professional code, you can do so, but a vague feeling that it's all a bit unfair won't get you far. It is not the job of your employer's lawyers to smooth your path.

Thanks.

Unfortunately at this point I cannot give examples or indeed point to the specific Acts peculiar to this situation. Perhaps it wold be easier to understand if I could.

If I understand what you are saying above, then you say that it is quite proper for a solicitor to omit to inform the barrister that they were complicit, or indeed wholly responsible, in orchestrating/implementing, for example, a smear campaign, and/or other equally damaging actions, as part of the removal campaign that they ran against the employee on behalf of the employer.

If indeed that is what you are saying, that under the banner of, "It's not unlawful for an employer to act according to its own best interests, to take advice, or to have a strategy", this sort of behaviour is considered to be normal and acceptable practice, then I am clearly more naive than I had thought I was.

It is specifically the solicitor's ethical duty towards the barrister that interests me.

Again, apologies in advance here, as I cannot go into precise details at this point. But this is not a trivial matter. It has ruined the live of the individual concerned. Who studied and trained for many years to achieve the position, and who has now been made both unemployed and unemployable by the actions of a few mediocre individuals threatened by the consequences of their lax ethical positions and their willingness to allow others to suffer to prop up their comfortable public sector positions. I suppose in part that this is what has attuned my interest in the ethical standards of the legal profession.

Edited by IanA2 on Sunday 23 November 07:21

Edited by IanA2 on Sunday 23 November 07:22

Edited by IanA2 on Sunday 23 November 07:23

[IanA2]

Breadvan72 said:

Why won't you spell out what your concerns are? It is impossible to advise on vague generalities. A solicitor should not place a barrister in a position in which the barrister inadvertently misleads a court or tribunal, but that's not a matter which anyone other than the barrister or the lay client can complain about. Lawyers should act ethically. It is impossible to say whether they are doing so in your case because you won't supply any details.

Thanks.

Yes, that has been my feeling from the start.

The case is in process, settlement discussions are live, accordingly, it is difficult to give details.