Chapter 4b: Confidentiality and conflict of interests

Confidentiality

Lawyers have a professional duty of confidentiality to their clients subject to conduct rules. Generally, they cannot be forced to disclose information which has been communicated for the purpose of giving or obtaining legal advice. There is also the client’s legal professional privilege. The principle of legal professional privilege is designed to promote the right of a client to communicate with a lawyer for the ‘dominant’ purpose of obtaining advice in relation to legal or administrative proceedings. It does not apply where it involves a criminal act or purpose. It is intended to create an environment in which clients will give a full and frank disclosure of all the circumstances of the situation. The information may be oral or in writing, but must be made for the dominant purpose of seeking or giving legal advice or for use in legal proceedings.

However, there are exceptions to this duty of confidentiality. Lawyers are required to disclose information where:

• communication is made by the client to the solicitor for the purpose of being guided or helped in committing a crime, or
• there is a duty under legislation or common law to disclose information (for example, search warrants).

Conflict of interests

Solicitors are required to avoid situations where their duty to one client conflicts with their duty to another (as distinguished from a conflict of interests between the solicitor and client). Generally, the rules of courts require that parties who are in conflict with each other have separate legal representatives. A conflict of duty can arise in a range of situations and works against the lawyer’s duty to use all the relevant information to further the interests of one client while maintaining the confidentiality of another. Conflict of duty issues can be a serious problem in country areas, where there is sometimes only one solicitor available and often results in one of the clients having to find legal advice in another town.

A conflict of interests can also arise in relation to a previous client. Solicitors have an obligation not to breach the confidentiality of a prior client. This can be a problem in large firms and because lawyers commonly move between firms. Some firms have developed the concept of ‘Chinese walls’, or ‘information barriers’ whereby procedures are established to prevent information held by one solicitor being communicated to others in the office.

Also, a solicitor should not act for a person if they themselves have a particular interest in a matter, which they could put before their duty to act in the best interests of their client.

Duty to the court

Lawyers have a duty to their clients and to the court and problems can arise when these duties are in conflict. As set out in the Conduct Rules, a solicitor's duty to the court and administration of justice is paramount and prevails to the extent of inconsistency with any other duty. Under the LPUL, lawyers are regarded as officers of the Supreme Court. However, lawyers also have an obligation to use all the available information to pursue the interests of their clients.

The lawyer’s duty to the court may result in appearing to be acting contrary to your interests. For example, a lawyer must refuse to call witnesses, even if you want them, unless they will advance your cause or damage the opposing case.

However, it is not the duty of a solicitor to correct an error made by an opponent or any other person in a court. If there is a conflict, the lawyer’s duty is to:

• not wilfully or knowingly mislead the court as to the facts, and
• not mislead the court as to the law.