Frances discovered that her marriage had ended at a neighbour’s party. She was chatting with a lively group of people, amongst whom was George. George, as Frances knew, worked on the support staff of a legal firm specialising in high net worth divorces. George did not know Frances and they hadn’t been introduced. Another person in the group directed George’s attention across the room to Hugh, who as it happened was Frances’ husband. Before Frances could lay claim to him, however, George casually remarked, “Oh yes, I know Hugh, he’s a client of ours.” This was news to Frances, and it didn’t take much time for her to work out that Hugh could only be consulting a divorce solicitor in secret for one reason.
That story is hypothetical, although similar incidents have happened for real. It is a reminder that client confidentiality covers everything about a client, including the basic fact that the client is a customer of the firm, and on occasion even his name and address, just as much as it covers the more private instructions. If anything, these basic elements are much more dangerous: it’s relatively easy to be on your guard not to disclose any facts from a client’s correspondence, but you can overlook his concern not to be identified as a client of the firm in any way at all. Hugh clearly wanted the fact of his consultations with his divorce solicitor to be confidential, at least for the time being, and George’s unthinking disclosure had stripped the confidentiality away.
Of course disclosure of identity isn’t of importance to every client, and it may even be said that it isn’t important to most. The cheery guests photographed sharing a glass of warm white wine with the partners at the summer party probably don’t mind being publicly identified on your website as patrons of your firm, but in cases of doubt, it is better to be safe than sorry.
The SRA makes clear that the duty of confidentiality “is owed to clients by all members of the firm .... including support staff” (Notes to the Handbook at Chapter 4). Obviously the firm’s primary responsibility for confidentiality lies with the COLP (Compliance Officer for Legal Practice), but you need to ensure that you are familiar with the firm’s confidentiality policies and that they are reasonably clear for your day-to-day work. What is the baseline policy? Does it cover all of the usual situations that you have to deal with? If not, get some policy guidance from the COLP.
In the case of Hugh and George, the repercussions of this kind of slip of the tongue are more likely to be in embarrassment (and family rows!) for Hugh, than in major financial costs or personal danger. There will also be embarrassment for the firm; this is the kind of incident which can poison a solicitor-client relationship, which is founded on trust. There may also be some financial fall-out, however, because once divorce proceedings have been tainted by what Frances would see as a breach of trust on Hugh’s part, the knock-on cost effects in the proceedings themselves can be considerable.
Careless talk therefore may not always cost lives, but it all too frequently costs money; and there are other cases in which inadvertent disclosure of the client’s identity can put the client in danger of legal proceedings, or even of personal injury.
Here’s another example: Amanda plans to leave her partner Barrie, who has become increasingly violent towards her. Before leaving, she tells her solicitor (who has acted for Amanda and Barrie in the past on conveyancing matters) her new address and contact details, then leaves without telling Barrie. Barrie then visits the solicitor’s office to ask for advice, and although he is told that there is now a conflict of interest, he manages to catch sight of Amanda’s new address on the computer screen in reception while a staff member is checking the records. Barrie promptly goes round to the new address and assaults Amanda.
This is a family law scenario, and family lawyers tend to have systems in place to avoid accidental disclosure of new address details. But it is emphatically not just a family law problem: there are many commercial disputes in which one former business associate is nursing a burning grievance against another and it’s of the utmost importance not to provide any opportunity, however inadvertent, for harassment or assault. Where address details are sensitive, it is always good practice to make this clear at the front of the file and on the computer system.
Sometimes the confidentiality extends even to the client’s name. The obvious example is the whistleblower client – let’s call her Elfrida - who needs to keep her identity secret to avoid being sued or even prosecuted by her former employer. Elfrida may have instructed the solicitor using a false name, so that the firm does not know her true identity; that may progress over time to a disclosure of her real name to her solicitor on the basis of the strictest confidence and that it is not to be disclosed to anyone else. In cases like Elfrida’s, systems should be in place to prevent the client’s real name being inadvertently disclosed, for example in documents which are sent to the other side. One last “find and replace” check before documents are printed can save a lot of time, exasperation, and money.
Your firm’s COLP should already have put systems in place to make everyone aware of those files where even the most basic details about a client are confidential; if not, or if you have concerns about whether the policy is workable, it is worth raising with him or her. Support staff are the confidentiality front line. The stories of Hugh, Amanda and Elfrida only go to show that a breach of that front line can have very serious as well as expensive consequences, and a responsible COLP should welcome constructive suggestions where there are gaps. Given the consequences, you can never be too careful in protecting a client’s confidentiality and, by doing so, preserving a client’s trust.
© Jocelyn Anderson 2015