Striking the balance: requests for information versus confidentiality

As solicitors, the duty to keep client documentation and information confidential ought to be at the forefront of our minds. At the same time, we’re well aware of our duty to uphold the proper administration of justice. In a world driven by data, and the colliding worlds of data protection and freedom of information, these duties may sometimes come into conflict. So what happens to client confidentiality when a law enforcement agency makes a request for your client’s data? Under outcome 4.1 of the Solicitors Regulation Authority (SRA) Code of Conduct, a solicitor must not volunteer information about a client. Chapter 4 of the code tells us we must keep the affairs of clients confidential unless either disclosure is required or permitted by law; or the client consents. At first blush, it may seem reasonable to infer that where client information is requested by an officer of the law, all information held in relation to that client can properly be disclosed. This is far from the case. While solicitors must provide information that is compelled by a court order, Chapter 5 of the code makes clear that client information cannot be volunteered to the police when informal requests are made. It is an important distinction meriting further exploration.

PRODUCTION ORDERS

Solicitors often play an operative role in large financial transactions, which makes our firms a target for financial criminals seeking to launder their funds. The police may request access to files to investigate whether a client – and perhaps even the solicitor who acted in the transaction – committed a criminal offence. There are a number of ways in which the police may request client information. The predominant consideration for solicitors is whether the request has been made in such a format that the normal principles of client confidentiality are overridden. A production order obtained under section 345 of the Proceeds of Crime Act 2002 requires the production of specified material from solicitors (among other professional bodies) relating to their client or former client. The order lists the documentation and information to be provided, often within seven days. In most instances that time period will be capable of extension without further application to the court. Failure to comply with a production order may lead to criminal sanctions. This must, of course, be balanced against the risk that the duty of confidentiality is breached if too much information is disclosed. Material that is protected by legal professional privilege is outside the scope of the production order and does not fall to be disclosed. This means receipt of a production order can often necessitate a tricky and time-consuming trawl through historic records to identify, on a document by document basis, the particular material that can rightfully disclosed. Under normal circumstances, a solicitor is obliged to inform the client of any developments that are relevant to the retainer. It is commonplace for a production order to contain a specific non-disclosure provision; in which case it’s an offence to reveal material to the client or others if it could prejudice the investigation. Informal requests for client information may be made by law enforcement officers within an email, over the telephone or in person. It is common for the police to send multiple questions within the body of an email, before a production order has even been sought. This can put a solicitor in a difficult position: without a production order, even confirming we act for a client may constitute a confidentiality breach. To protect confidentiality, it is important for solicitors who receive such requests to ask the relevant officer if they may either seek the client’s consent to disclose; or be served with an appropriate notice or production order.

LEGAL PROFESSIONAL PRIVILEGE – AN OVERRIDING PRINCIPLE

There are only three circumstances in which the disclosure of documentation subject to legal professional privilege is appropriate or can be compelled: As solicitors, the duty to keep client documentation and information confidential ought to be at the forefront of our minds. At the same time, we’re well aware of our duty to uphold the proper administration of justice. In a world driven by data, and the colliding worlds of data protection and freedom of information, these duties may sometimes come into conflict. So what happens to client confidentiality when a law enforcement agency makes a request for your client’s data? Under outcome 4.1 of the Solicitors Regulation Authority (SRA) Code of Conduct, a solicitor must not volunteer information about a client. Chapter 4 of the code tells us we must keep the affairs of clients confidential unless either disclosure is required or permitted by law; or the client consents. At first blush, it may seem reasonable to infer that where client information is requested by an officer of the law, all information held in relation to that client can properly be disclosed. This is far from the case. While solicitors must provide information that is compelled by a court order, Chapter 5 of the code makes clear that client information cannot be volunteered to the police when informal requests are made. It is an important distinction meriting further exploration.

PRODUCTION ORDERS

Solicitors often play an operative role in large financial transactions, which makes our firms a target for financial criminals seeking to launder their funds. The police may request access to files to investigate whether a client – and perhaps even the solicitor who acted in the transaction – committed a criminal offence. There are a number of ways in which the police may request client information. The predominant consideration for solicitors is whether the request has been made in such a format that the normal principles of client confidentiality are overridden. A production order obtained under section 345 of the Proceeds of Crime Act 2002 requires the production of specified material from solicitors (among other professional bodies) relating to their client or former client. The order lists the documentation and information to be provided, often within seven days. In most instances that time period will be capable of extension without further application to the court. Failure to comply with a production order may lead to criminal sanctions. This must, of course, be balanced against the risk that the duty of confidentiality is breached if too much information is disclosed. Material that is protected by legal professional privilege is outside the scope of the production order and does not fall to be disclosed.

This means receipt of a production order can often necessitate a tricky and time-consuming trawl through historic records to identify, on a document by document basis, the particular material that can rightfully disclosed. Under normal circumstances, a solicitor is obliged to inform the client of any developments that are relevant to the retainer. It is commonplace for a production order to contain a specific non-disclosure provision; in which case it’s an offence to reveal material to the client or others if it could prejudice the investigation. Informal requests for client information may be made by law enforcement officers within an email, over the telephone or in person. It is common for the police to send multiple questions within the body of an email, before a production order has even been sought. This can put a solicitor in a difficult position: without a production order, even confirming we act for a client may constitute a confidentiality breach. To protect confidentiality, it is important for solicitors who receive such requests to ask the relevant officer if they may either seek the client’s consent to disclose; or be served with an appropriate notice or production order.

LEGAL PROFESSIONAL PRIVILEGE – AN OVERRIDING PRINCIPLE

There are only three circumstances in which the disclosure of documentation subject to legal professional privilege is appropriate or can be compelled: