When it comes to client confidentiality, does the profession draw the line in the right place? Historically, the paramountcy of client confidentiality, to the exclusion of all else, has been instilled in us from the early days of our legal careers. We think, it’s fair to say, that many of us faced with a request to disclose would instinctively formulate a response that erred on the side of caution and favoured non-disclosure.
Has the historic position coupled with the severe consequences of breaching client confidentiality led us down a path where we now simply accept this as the position, rather than truly analysing where the line should properly be drawn and fully understanding the principles behind this?
The Solicitors Regulation Authority (SRA) codes of conduct for both solicitors and firms are clear, 6.3 of both codes stating in no uncertain terms: ‘You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.’ While the SRA has issued guidance on the ‘confidentiality of client information’ and the exceptions that apply, how this plays out in practice for lawyers facing complex, ethical issues has long been a dilemma for the profession.
At an international level, such tensions led to the International Bar Association (IBA) last year releasing a statement defending the principle of lawyer client confidentiality, following statements in the financial crime context by organisations such as the UN Financial Accountability Transparency & Integrity Panel that, ‘lawyers in multiple jurisdictions have used their legal privilege to assist criminals in money-laundering and other criminal conduct’ and ‘while many professions have codes of conduct and other standards for membership in professional bodies, these codes are divorced from the demands of sustainable finance and the public interest’.
Legal professional privilege is of course a separate consideration to the primary question of confidentiality but represents a further strand for lawyers to grapple with in this complex area. The IBA has stressed the need to preserve the principle of lawyer-client confidentiality, ‘which is necessary for lawyers to properly represent their clients, and for the proper administration of justice’.
No confidence in an iniquity
The long-standing exception to the duty of confidence: ‘…there is no confidence as to the disclosure of an iniquity’ (ie the iniquity exception) is well-known (Gartside v Outram  26 LJ Ch (NS) 113). The application of this exception, however, is a specific example in the broad topic of client confidentiality where, similarly, tensions, and uncertainty, have arisen.
The SRA interprets the exception narrowly in its guidance, ‘Confidentiality of client information’, stating: ‘You will need to consider carefully the information which is available to you and whether this clearly identifies a proposed victim or is sufficiently detailed or compelling enough for you to form an opinion that a serious criminal offence will occur.’ (Our emphasis). But what of the lawyer faced with a situation that falls short of this formulation? Your client confesses to you in the lead up to their trial for an unrelated murder that they have murdered two missing women and buried their bodies. Based on the information provided by the client, you locate the bodies.
Do you inform the authorities, and in turn the women’s families, still searching for the women or are you bound by your duty of confidence to not disclose? The offence has already been committed so there is no question of disclosure to prevent a future offence. These were the circumstances of the 1970s US case known as ‘the Buried Bodies Case.’ Many may conclude the morally sound thing to do would be to disclose. In this case, the relevant lawyers favoured their duty of confidentiality and were subject to criminal charges and disbarment proceedings as a result. However, neither were successful. How should a regulator respond in these circumstances?
Alternatively, what if your client confessed to you that they committed an offence for which another person was currently serving a prison sentence? Do you disclose or do you preserve client confidentiality? Professor W Bradley Wendel cites this example in Chapter 2 of his forthcoming book, Cancelling lawyers—case studies of accountability, toleration and regret. His experience is that many non-lawyers side on the lawyers disclosing the confession, while nearly every lawyer asked favours maintaining confidence. He comments: ‘Either way, however, the usual analysis of that case seeks to characterise the lawyers’ actions as either right or wrong, and then that’s the end of it. There is no consideration of the possibility that the lawyers may have been right but should nevertheless feel considerable discomfort or regret about what they chose to do.’ This example was another real-life case from the US: ultimately the lawyers disclosed their client’s confession after his death, having previously obtained their client’s consent to do so by disclosing a written affidavit by him admitting to the murder. The wrongly convicted man, Alton Logan, was released from prison after serving 26 years.
In both of the above examples, the SRA’s interpretation of the iniquity principle would not apply. On the information provided, there was no indication of an imminent serious criminal offence. While these are, of course, extreme examples in the criminal context, they are illustrative of how there can be very powerful public interest issues that arise in applying a strict view of the duty of confidentiality. These difficulties arise from giving lawyers too little discretion over their duty but too much discretion can lead to a subjective interpretation by lawyers of their duty. In the paper, ‘A call for improvement in the SRA’s guidance on disclosure of “confidential” information’, Richard Moorhead, Graeme Johnston and Jenifer Swallow examine the position taken by the SRA in its guidance and comment that the iniquity exception is far wider, encompassing ‘not only crime, but also broader situations of fraud, dishonesty, bad faith or sharp practice’ and that, at law, only a prima facie case needs be established rather than forming the opinion a serious criminal offence ‘will occur’. They go on to say: ‘Purely future wrongdoing is likely to be a narrow set of cases. The more important case of ongoing wrongdoing is not addressed in the guidance.’
In England and Wales there is the example case of Stephen Chittenden. Here, Mr Chittenden shared his client’s file, who he successfully defended for murder in the 1970s, without their consent to solicitors appointed for the estate of the murder victim which resulted in: 1) his client being the subject of a civil action, but 2) the conviction of the murderer. Ultimately, in 2017 Mr Chittenden agreed with the SRA, by way of a Regulatory Settlement Agreement, that he would remove himself from the roll. Clearly the message that client confidentiality is paramount was maintained by this decision but the particular circumstances of this matter, in that once this matter came to the attention of the SRA Mr Chittenden’s actions were historic, having taken place decades previously, and he was retired mean, we believe, it has limited scope in terms of guidance for ongoing and future matters.
The way forward
The paper referenced above (‘A call for improvement in the SRA’s guidance on disclosure of “confidential” information’) summarises the SRA’s guidance as ‘inappropriately’ discouraging effective reporting of serious misconduct and risks of harm through, inter alia, ‘nudging’ the reader ‘towards non-disclosure rather than stating the position more neutrally’. It invites the SRA to issue new guidance and host workshops to develop and then roll out the new guidance.
Similarly, the IBA in its statement last year recommended that regulators devote, ‘enhanced attention to the responsibilities and rules associated with lawyers’ obligations under lawyer-client confidentiality, expand training regimes for newly admitted lawyers and provide refresher training for existing lawyers’.
We agree that revised guidance and training as to the ethically pressured situations lawyers can find themselves in is to be welcomed, not only in this context but beyond. Legal ethics is becoming more complex. Recent examples include non-disclosure agreements (NDAs) following the #metoo movement, client selection following Russia’s invasion of Ukraine and the host of ethical issues introduced with advancements in artificial intelligence (AI). There is a need for more nuanced and regularly reviewed guidance. There is also a place for enhanced and continual dialogue between the SRA and the profession on matters of this nature so that lawyers get the balance right. It is through the sharing of experiences, ideas and solutions that, together, we can navigate this tricky area and seek to find the ‘right’ answer with the public interest in mind.
This was first published by New Law Journal on 13 October 2023.