Tuesday 4th February 2020

Advocacy & Professional Ethics – WEEK 4 – the nature of lawyer client relationship

CLIENT’S INTERESTS SHOULD TAKE PRECEDENCE OVER THOSE OF THE LAWYER

Dinerstein:
- Participatory approach: continual dialogue between lawyer and client
- Client centred
- ‘Client centred relationships entail shared decision-making responsibility and mutual participation
by the lawyer and client. By avoiding the trap of either lawyer or client-dominance, these
relationships provide greater opportunities for facilitating wise client decisions in a supportive
atmosphere.’
Traditional/paternalistic view:
- Lawyer should be left to take decisions in the best interests of the client
- Lawyer has superior knowledge, skills, and experience and therefore knows what is best
Modern view:
- Lawyer acts as counsellor and adviser
- Client takes control of decision making

MODELS OF LAWYER-CLIENT RELATIONSHIP

Agency
- Lawyer acting as agent; client as principal
- Lawyer needs to act in best interests of the client
Contractual
- Contract between lawyer and client
- Both have rights and duties
Fiduciary
- Lawyer has superior knowledge and skill, thus is a fiduciary
- Lawyer must take special care to ensure that no advantage is taken of the client

PROFESSIONAL RULES
Bar Code of Conduct 2015
- C3: lawyer-client relationship
- CD2: must act in the best interests of each client
- CD6: must keep the affairs of each client confidential
- CD7: must provide a competent standard of work and service to each client
Solicitors Code of Conduct 2011
- Principle 4: must act in the best interests of each client
- Principle 5: must provide a proper standard of service to your clients

CONFLICT OF INTERESTS & CONFIDENTIALITY

SRA Code of Conduct 2011
Chapter 4: ‘protection of confidential information is a fundamental feature of your relationship with
clients. It exists as a concept both as a matter of law and as a matter of conduct. This duty continues
despite the end of the retainer and even after the death of the client’
- Outcome 4.1: ‘you keep the affairs of clients confidential unless disclosure is required or permitted
by law or the client consents’
- Outcome 4.4: ‘you do not act for A in a matter where A has an interest adverse to B, and B is client
for whom you hold confidential information which is material to A in that matter, unless the
confidential information can be protected by the use of safeguards, and
(a) You reasonably believe that A is aware of, and understands, the relevant issues and gives
informed consent;
(b) Either:
 i. B gives informed consent and you agree with B the safeguards to protect B’s
information; or
ii. Where this is not possible, you put in place effective safeguards including
information barriers which comply with the common law; and
(c) It is reasonable in all the circumstances to act for A with such safeguards in place

SRA Code of Conduct 2011

Outcome 3.6: ‘where there is a client conflict and the clients have a substantially common interest in
relation to a matter or a particular aspect of it, you only act if:
- you have explained the relevant issues and risks to the clients and you have a reasonable belief that
they understand those issues and risks;
- all the clients have given informed consent in writing to you acting;
- you are satisfied that it is reasonable for you to act for all the clients and that it is in their best
interests; and
- you are satisfied that the benefits to the clients of you doing so outweigh the risks’

SRA Code of Conduct 2011

Outcome 3.7: ‘where there is a client conflict and the clients are competing for the same objective, you
only act if:
(a) you have explained the relevant issues and risks to the clients and you have a reasonable belief that
they understand those issues and risks;
(b) the clients have confirmed in writing that they want you to act, in the knowledge that you act, or
may act, for one or more other clients who are competing for the same objective;
(c) there is no other client conflict in relation to that matter;
(d) unless the clients specifically agree, no individual acts for, or is responsible for the supervision of
work done for, more than one of the clients in that matter; and
(e) you are satisfied that it is reasonable for you to act for all the clients and that the benefits to
the clients of you doing so outweigh the risks.’

Bolkiah v KPMG [1999] 2 AC 222; [1999] 1 All ER 517

- Lord Millett:
- Duty was to ‘keep the information confidential, not merely to take all reasonable steps to do
so’
- ‘It is in any case difficult to discern any justification in principle for a rule which exposes a
former client without his consent to any avoidable risk, however slight, that information
which he has imparted in confidence in the course of a fiduciary relationship may come into
the possession of a third party and be used to his disadvantage. Where in addition the
information in question is not only confidential but also privileged, the case for a strict
approach is unanswerable. Anything less fails to give effect to the policy on which legal
professional privilege is based. It is of overriding importance for the proper administration
of justice that a client should be able to have complete confidence that what he tells his
lawyer will remain secret.’
- ‘The court should intervene unless it is satisfied that there is no real risk of disclosure. It
goes without saying that the risk must be a real one, and not merely fanciful or theoretical.
But it need not be substantial.’

Marks & Spencer plc v Freshfields Bruckhaus Deringer [2004] EWHC 1337 (Ch); [2004] EWCA Civ 741
- Collins J: difficulty in putting an effective informational barrier in place due to the volume of people
who had worked on the projects
- Herring: decision should be treated with care:
- An application by a former client to prevent the firm from acting
 - M&S had been a major client of Freshfields and many of the firm’s solicitors had been
involved in this work at some point
- Not a friendly takeover bid.

Koch Shipping Inc v Richards Butler (A Firm) [2002] EWCA Civ 1280
- Single solicitor of integrity’

CONFLICT WITH SOLICITOR’S OWN INTERESTS

- Buying or selling property to client; lending client money; advising client on a venture from which
the lawyer or the lawyer’s family would profit
- Includes lawyer’s family or someone with whom the lawyer has an intimate relationship (Richards v
Law Society [2009] EWHC 2087 (Admin))
Solicitors Regulation Authority v Dennison [2012] EWCA Civ 421
- Fred West’s solicitor: Howard Ogden

LEGAL PRIVILEGE
- All communications between lawyers and clients, and documents prepared for the purposes of
litigation, must not be disclosed to others without consent of the client
Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [2004] UKHL 48;
[2005] 1 AC 610
- Legal advice privilege: all communications between lawyer and client concerning the giving
and receiving of legal advice; and
- Litigation privilege: communications between lawyer and someone else connected to the
preparation for litigation.

Nederlandse Reassurantie Groep Holding NV v Bacon & Woodrow [1995] 1 All ER 976
- Herring: court will not be willing to separate out parts which are legal and parts which are not.
Barclays Bank v Eustice [1995] 4 All ER 511
-Schiemann LJ: clients should be encouraged to seek advice on matters which may border on illegality

EXCEPTIONS TO CONFIDENTIALITY & PRIVILEGE

Consent/Waiver
- Client can give consent to the disclosure or waive their right
- Waiver will generally be express but can be implied (MAC Hotels Ltd v Rider Levett Bucknall UK Ltd
[2010] EWHC 767 (TCC))
Children
- Re L (Police Investigation: Privilege) [1996] 2 FLR 731
- Children Act 1989: welfare of child as ‘paramount’

Criminal Activity
- s10(2) Police and Criminal Evidence Act 1984: privilege does not apply to ‘items held with the intent
of furthering a criminal purpose’
- Francis and Francis v Central Criminal Court [1989] AC 346
- ‘Intent’ could be that of anyone and need not be of the solicitor or client
- Re McE [2009] UKHL 15
- Lord Phillips: not an exception as criminal communications are not part of giving legal advice
Public Interest
- Attorney General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109
- Must weigh up interest in maintaining confidence and interest in disclosing

Statute
- Part II Regulation of Investigatory Powers Act 2000
 - Covert surveillance of privileged communications
- PACE 1984
- Money laundering
- Proceeds of Crime Act 2002
- Terrorism Act 2000
Mediation
- Protected by confidentiality but not by legal professional privilege
- Parties must discuss such matters beforehand

Client-Lawyer Litigation
- Lawyer can use material which is otherwise confidential
- Need to be able to defend allegations
Joint Retainers
- Material disclosed to both parties

- Boon: legal professional privilege and doctrine of confidentiality are under attack
- Two justifications:
- Proceedings relating to children are not really adversarial and thus no need to maintain
privilege.
- Need to protect the public interest.

SUMMARY
Today we;
- Discussed conflicts of interest between existing and proposed clients or a lawyer’s own interest.
- Explained the professional rules on confidentiality and privilege.
- Explained the exceptions to the rules on confidentiality and privilege.