Duty of Confidentiality when previous Instructing Solicitors are sued
The instructing solicitor is sued by his former lay client; he approaches Counsel who was instructed on the client’s behalf, requesting that Counsel provide him with a witness statement of his recollections for use in his defence. What is Counsel’s duty? The Professional Conduct and Complaints Committee has recently considered this difficult question.
Counsel’s primary duty as between his lay client and his professional client is owed to the lay client (Code of Conduct 8th Edition Paragraph 303). Counsel has a positive obligation to preserve the confidentiality of his client’s affairs (Paragraph 702). Furthermore, he must not, without prior consent, or as permitted by law, communicate to any third person information which has been entrusted to him in confidence or use such information to his lay client’s detriment.
A client who sues his solicitor impliedly waives privilege and confidence in relation to his dealing with that solicitor (see Lillicrap v Nalder [1993] 1 WLR 94 and other decisions including NRG v Bacon & Woodrow [1995] 1 All ER 976, Kershaw v Whelan [1996] 1 WLR 358 and Hayes v Dowding [1996] PNLR 578. The client is precluded from both asserting a breach of duty, and enforcing the professional confidence where such enforcement would deprive the solicitor of his defence to the allegation of breach of duty. The implied waiver may extend to privileged communications between the client and a third party.
There can be no doubt that where the barrister himself is sued, there is a corresponding implied waiver in relation to him. It has further been suggested that, in a case where the solicitor only is sued, there is automatically an implied waiver in relation to duties of Counsel instructed by that solicitor. The PPC considers that whether there is such an implied waiver, is a matter of law and may well be dependent on the particular facts of an individual case. Counsel who makes his own decision as to whether his former client’s conduct amounts to an implied waiver takes the risk that the court, the PPC or a Disciplinary Tribunal might not agree with him. Similar considerations may arise with regard to the question whether information has lost any character of confidentiality through being placed in the public domain.
The PPC’s view is that there is no objection to Counsel informing the solicitor (if it is the case) that Counsel is willing to provide a witness statement subject to the written consent of the former lay client being obtained. Such consent can be given by the client’s new solicitor on his behalf.
Problems of professional conduct and complaint are liable to arise where such consent is requested and refused. It is not Counsel’s duty to arbitrate, on this question of implied waiver, between the interests and arguments of his instructing solicitor and those of his former lay client. If consent is refused, or simply not provided, Counsel would be wise to decline to provide a statement until provided with a suitable order of Court.
