Session 8 Confidentiality and disclosure

1 Contents Part 1: Introduction Part 2: The duty of confidentiality Part 3: The duty of disclosure Part 4: Confidentiality and conflict Part 5: How to deal with confidentiality Part 6: Obtaining client consent Part 7: Safeguarding confidentiality Part 8: Keeping records Part 9: Instructions after a confidentiality issue arises Part 10: Summary

2 Introduction Part 1

3 Application of the policy Who is covered? All staff Who is responsible for our policy? Compliance officer for legal practice (COLP) Urgent matters when COLP is not available—refer to their deputy /your line manager

4 The duty of confidentiality Part 2

5 The duty of confidentiality Client affairs must be confidential unless: disclosure is required or permitted by law the client consents

6 Disclosure required or permitted by law Statutes Anti-money laundering reporting requirements Police and Criminal Evidence Act 1984

7 Confidentiality v legal professional privilege A right belonging to the client that: protects against disclosure of information cannot be overridden does not cover all confidential communications protects only communication under: o advice privilege, or o litigation privilege

8 The duty of disclosure Part 3

9 The duty of disclosure Clients must be made aware of all material information UNLESS: client consents to non-disclosure a different standard of disclosure arises threat of injury towards a third party if disclosed legal restrictions prohibiting disclosure privileged documents mistakenly disclosed to us information relates to state security/intelligence

10 Confidentiality and conflict Part 4

11 Confidentiality and conflict Duty of confidentiality takes precedence Permission to act depends on whether: there is a conflict of interest between the clients the respective clients have adverse interests the confidential information can be safeguarded

12 Confidentiality and conflict (cont) Scenarios where we hold material confidential information for: 1.existing client with adverse interest to our client on an unrelated matter 2.former client with adverse interest to our client 3.former or existing client with no adverse interest

13 Confidentiality and conflict (cont) Scenarios 1 and 2 Confidential information combined with an adverse interest For example, we receive confidential information about one client (C1) that is relevant to the other client (C2) Not a strict client conflict scenario but confidentiality requirements apply Safeguards and consent needed

14 Confidentiality and conflict (cont) Scenario 3 Confidential information without adverse interest We hold confidential information for existing client (C1) that matters to the other client (C2) but there is no adverse interest between C1 and C2 Act for C2 if we safeguard C1’s confidential information. No requirement for C1’s consent

15 How to deal with confidentiality Part 5

16 Conflict check reveals confidentiality issue 1.Fee earner s COLP 2.COLP reviews and decide whether we can act, ie whether: we hold material confidential information there is adverse interest between clients there are reputational/commercial reasons for not acting we are able to safeguard information 3. You must not undertake any further work until the COLP has responded

Part 6 Obtaining client consent

18 Obtaining client consent Where consent needed: always obtain written consent ensure client understands potential risks if there is risk of prejudicing either client, consent should not be sought and we should not act

19 The firm can act if: informed consent obtained clients’ confidential information safeguarded guarded We must: notify the COLP that all clients have consented create an action plan monitoring file at fixed intervals Difficulties with seeking client consent

Part 7 Safeguarding confidentiality

21 How do we implement safeguards? Ring-fencing—ensure fee earners/teams are not involved with other clients No overlap of management of the fee earners/teams that deal with each client Access restrictions to confidential information imposed on relevant fee earners/teams Physical separation of fee earners/teams dealing with each client

22 How do we implement safeguards? (cont) Password protect information on management system Appoint supervisor for confidentiality of each client System for incoming correspondence to prevent inadvertent sharing of confidential information Signed statements from each fee earner/team member confirming understanding of duty and compliance

Part 8 Keeping records

24 Keeping records How to report? or use the facility in Compliance Manager What happens to the form? It should be sent to the COLP, who maintains a register of decisions Who reviews the reported matters? COLP Records are kept by means of reporting using the following procedure:

Part 9 Instructions after a confidentiality issue arises

26 Instructions after a confidentiality issue arises Examples: nature of the client’s matter changes, meaning information we hold about other clients becomes material companies merge or are taken over individuals become incapacitated, die or assign their interest new staff member joins the firm and has material information about client from previous employment

27 Instructions after a confidentiality issue arises (cont) When there is a material change further conflict check report conflicts/confidentiality issues using Conflicts/Confidentiality form

28 Instructions after a confidentiality issue arises (cont) When we cease to act: ensure the issue is handled sensitively update clients with decisions or deadlines promptly possibly suggest a third party to take on client’s matter ensure our policy is not infringed when referring client’s matter to third parties comply with policy for introductions to third parties

29 Summary Part 10

30 Summary Client’s information must be kept confidential unless disclosure is required by law or the client consents to disclosure Three reasons for disclosure: o statutes o reporting requirements relating to anti-money laundering, and o the Police and Criminal Evidence Act 1984 Duty of confidentiality must be distinguished from LPP Duty of confidentiality overrides duty of disclosure

31 Summary (cont) Client consent must be obtained before we act Confidentiality issues are identified resulting from conflict check procedure The facility in Compliance Manager must be used to report and record any issues If confidentiality issues arise after instructions are accepted, a further conflicts check should be carried out

32 Final comments Any questions? to Update your training records in Compliance Manager