SG1: Conflict of Duties (Confidentiality / Disclosure)
Can we act for a partner if we have previously acted for the firm?
Key issue - do you have confidential information about (the other partners) that
might prevent you acting for (potential client)?
That would give rise to a conflict between your duties under paragraph 6.3 and
paragraph 6.4
Para 6.3 of the Code of Conduct for Solicitors (the Code) provides that there is
duty of confidentiality:
“You [must] keep the affairs of the current and former clients confidential unless
disclosure is required or permitted by law or the client consents.”
• This duty is owed to (potential client), but also to (the other partners) as former
clients.
• (The firm) is not a separate legal personality because it is not incorporated – so
when acting for (the firm) means that you act for each of (the partners).
• (The other partners) are former clients to who you owe a duty of confidentiality.
Para 6.4 of the Code provides for a duty of disclosure
“Where you are acting for a client on a matter, you make the client aware of all
information material to the matter of which you have knowledge….” [subject to
limited exceptions]
• We have a duty to (potential client) to make her aware of all the information
material to the mater of which we have knowledge.
• So, if you had information about (the other partners) that was material to
(potential client)’s matter, you would not be able to disclose that to her without
breaching your duty to (the other partners) under para 6.3.
• There is conflict between those two duties.
• Para 6.3 (confidentiality) takes priority over para 6.4 (disclosure).
• That would prevent you from acting for (potential client) unless one of the
exceptions to the duty of disclosure applied – none apply here.
• [The only potentially relevant exception would be 6.4(b), which would require
(potential client) to have given her written informed consent – that would mean
that you are not acting in her bests interests and possibly put you in breach of
principle 7 of the SRA principles.]
Can we act for a partner if we have previously acted for the firm?
Key issue - do you have confidential information about (the other partners) that
might prevent you acting for (potential client)?
That would give rise to a conflict between your duties under paragraph 6.3 and
paragraph 6.4
Para 6.3 of the Code of Conduct for Solicitors (the Code) provides that there is
duty of confidentiality:
“You [must] keep the affairs of the current and former clients confidential unless
disclosure is required or permitted by law or the client consents.”
• This duty is owed to (potential client), but also to (the other partners) as former
clients.
• (The firm) is not a separate legal personality because it is not incorporated – so
when acting for (the firm) means that you act for each of (the partners).
• (The other partners) are former clients to who you owe a duty of confidentiality.
Para 6.4 of the Code provides for a duty of disclosure
“Where you are acting for a client on a matter, you make the client aware of all
information material to the matter of which you have knowledge….” [subject to
limited exceptions]
• We have a duty to (potential client) to make her aware of all the information
material to the mater of which we have knowledge.
• So, if you had information about (the other partners) that was material to
(potential client)’s matter, you would not be able to disclose that to her without
breaching your duty to (the other partners) under para 6.3.
• There is conflict between those two duties.
• Para 6.3 (confidentiality) takes priority over para 6.4 (disclosure).
• That would prevent you from acting for (potential client) unless one of the
exceptions to the duty of disclosure applied – none apply here.
• [The only potentially relevant exception would be 6.4(b), which would require
(potential client) to have given her written informed consent – that would mean
that you are not acting in her bests interests and possibly put you in breach of
principle 7 of the SRA principles.]
