Online Exclusive: Third Party Rights v Solicitors Confidentiality

22 Sep 2011
http://www.firmmagazine.com/features/1012/Online_Exclusive%3A_Third_Party_Rights_v_Solicitors.html

The principle of client confidentiality risks being exposed to external scrutiny, as Eric Miller of Aaen Peach explains.

It almost seems as if hundreds of years worth of Scots Law and the sacrosanct rights of privilege and rights to confidentiality may about to be crushed in the name of consumer rights. In eagerness to appease the status quo, are we not in danger of overriding the individual rights of our clients?

The creation of the Scottish Legal Complaints Commission brought with it the new rights of a third party. The right to raise a complaint about another party’s solicitor if they think that they may have been directly affected (S2 (2)(b)(i) of the Legal Profession and Legal Aid (Scotland) Act 2007). Given the endless possibility of complaints that can be raised both legitimate and vexatious, it is no surprise that some solicitors will find themselves being asked to justify the advice provided to clients, the timing of their responses and even the instructions from their own clients, where a complaint has been raised by a third party.

Clients rarely seek the advice of a solicitor where there is neither conflicting nor opposing views. The public in this respect seek legal advice with the expectation that their solicitor shall act in their best interest, and of course that the there exists between a client and their solicitor the rights of confidentiality and privilege. On many occasions clients have been known to have discussions with myself as their solicitor under the assurance that what we discuss shall be confidential. I am sure I’m not the only solicitor to have had this kind of conversation. Yet with the new rights afforded to any third party to the action or negotiation and given the limitless areas open to challenge, many solicitors may find themselves in the untenable position of caught between defending themselves against a third party action and disclosing information held as confidential and privileged, which if disclosed, would open the solicitor up to an action by their own client.

It is my understanding that many firms are finding themselves in the dilemma of having strict instructions not to divulge any information from the file or any instructions provided where the SLCC is responding to a complaint raised by a third party. It would also seem conceivable that one’s client may not be traceable to seek such permission. Yet without such information being available, a firm would be unable to defend itself or raise any counter view even if the complaint is a statement that would not be out of place in Wonderland.

In the event of such a complaint the SLCC will advise you that they have the statutory powers to acquire confidential and privileged information when investigating non-client complaints. They shall remind you of the consequences of failing to respond both in the investigation and failure to respond to the SLCC. It may even be the case that your client will consent to provide the information to the SLCC to help you defend yourself, but only if the SLCC hold the information as confidential and do not divulge the file to any third party. Unfortunately for solicitors, any information acquired by the SLCC (being a public body) may be subject to being viewed by others via a request under the terms of the Freedom of Information Act. Therefore the SLCC cannot and will not provide an undertaking to not disclose your file to any other party.

Stepping forwards, after being happy with your service as a solicitor and having moved on in life, your client will no doubt be rather upset at being dragged into what is a total client relations mess. For example, they may ask you about what happened to their own rights to confidentiality and what was the point of even consulting a solicitor if there is no confidentiality. Further, they may even consider their ability to take action against the SLCC for infringing their privacy. They may even write letters and call the investigator at the SLCC to vent their frustration at having their rights trampled over.

It is my understanding that the Law Society are aware of this issue and the conflicting nature of the rights of third parties, the statutory powers of the SLCC and the time old rights of solicitor and client confidentiality. It also seems inevitable that someone will in the near future be the subject of a dreaded test case.

Eric Miller is a partner at Aaen Peach Legal

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