Duty of confidentiality - Wikipedia
All lawyers are fiduciaries, which is to say they owe clients fiduciary duties. . Lawyers also owe clients a duty not to use or disclose confidential information the . It is, therefore, respectfully submitted that legal opinion given by lawyer to the client is well recognized as confidential information on account of the fiduciary. lawyers and their fiduciary clients: the privilege and confidentiality ethical duty to keep client communications confidential, as defined by the state's ethical.
Confidentiality Conversations, correspondence and documentation between you and your solicitor are confidential and can only be revealed in limited situations. Solicitors must also follow strict rules in the maintenance of client files.
Conflicts of interest Your solicitor must not allow their own interests, or the interests of an associate, to conflict with those of a client.
A solicitor generally cannot act for you if they have previously provided legal advice to a person you are in dispute with. If you believe that your solicitor may have a conflict you should raise this with them.
Following instructions Your solicitor cannot make any decisions without your instructions. They must carry out your instructions promptly and efficiently in accordance with the law. Clear communication As the client, you should receive regular updates on the progress of your matter, preferably in writing. Your solicitor must provide advice about all your options, including the best course of action, which may be alternative forms of dispute resolution.
Your solicitor must also treat you with respect, be polite and assist in your understanding of the law.
Handling your money Your solicitor may ask you to pay some of their fees in advance to cover any expenses they incur during their work for you. This money must be held in trust and cannot be paid to anybody for any expenses without your specific permission, which you may provide in your original costs agreement.
Another rationale is to protect the human dignity of the client. In criminal cases, confidentiality is also justified to prevent the use of tricked confessions or admissions. Source of the duty[ edit ] The duty is sourced from a combination of contract law and equity arising from the distinctive relationship between lawyer and client.
The solicitor or attorney is an agent of the client under the law of agency. In contract, the duty arises from terms contained in the retainer agreement. Complementarily, equity prohibits unauthorised use or disclosure of confidential information.
Duty of confidentiality
In most jurisdictions, the duty is codified in the terms of legal professional rules, such as the Model Code of Professional Responsibility. Although the duty of confidentiality and fiduciary duties have common origins, they cannot be equated as not all fiduciary duties attract duties of confidentiality and vice versa. Scope of the duty[ edit ] In contract[ edit ] As the lawyer-client duty of confidentiality is primarily sourced in contract law, the wording of implied terms in the retainer agreement determines its scope of operation.
Despite its importance, there have been few judicial attempts to resolve the extent of the implied term. In equity[ edit ] In equity, protection is attached to information that is capable of meeting the test of confidentiality - whether the information was already public knowledge and whether its communication was for a limited purpose.
While this test may indicate a more limited scope of confidentiality under equity, by requiring information to be deemed confidential before falling under the scope, on another level equity may secure a broader temporal protection for confidential information.
Solicitors’ duties to clients | The Law Society of NSW
The duty under contract expires on termination of the legal retainer, whereas the duty under equity remains intact until the information is no longer confidential, which may occur long after the expiration of the contractual retainer.
In professional rules[ edit ] Legal professional rules have tended to adopt the broad view of the scope of duty recognised in contract law. The obligation to retain information in confidence, according to the professional rules in Australian jurisdictions is premised on its connection with the legal retainer rather than the source of the information. Hence, the professional rules seem to imply that information gained in connection with the legal retainer is deemed confidential.
However, though the rules emphasise the importance of the duty of confidentiality, this is not a hard rule. Not all information connected with the retainer meets the legal test of confidentiality. The duty of confidence applies to "any information, which is confidential to a client and acquired by [a] practitioner or [a] practitioner's firm during the client's engagement.
Firstly, privilege is not dependent on a contractual, equitable or professional duty to clients. Rather, it is based upon arguments of public policy. Secondly, communications protected by confidentiality are more numerous than those protected by privilege. Privileged communications are a subset of confidential communication. Nonetheless, loss of privilege does not necessarily automatically destroy the duty to confidentiality if it has arisen independently of the privilege.
Finally, privileged information is protected from compulsory disclosure, unless abrogated by statute or waived. Non-privileged confidential information on the other hand must be disclosed to judicial, statutory, or other legal compulsion. In particular, the public interest in discovering the truth trumps private duties to respect confidence.
Limits and exceptions to the duty[ edit ] Though the duty to confidentiality is often expressed in absolute terms in professional rules, there are circumstances where the duty can be breached. The breach of the duty in certain contexts is justified through the balancing of the often competing interests of the client and proper administration of justice Client authorization[ edit ] As lawyer-client confidentiality exists for the benefit of the client, the confidence is the client's to waive or modify.
Hence, the lawyer can reveal confidential information to third parties where the client allows such an action. However, consent to allow the disclosure of confidential information does not entitle the lawyer to disclose or use the information for other purposes than those specified by the client.
The authorization does not necessarily have to be explicit.