THE LAW SOCIETY OF NEW SOUTH WALES * OMNIUM JUR PEFENDIMUS PROFESSIONAL ETHICS, TACTICS AND COMMUNICATIONS WITH CLIENTS FREQUENTLY ASKED QUESTIONS JANUARY 2017
CONTENTS Confidentiality 3 Conflicts of interests 4 Duty to client - improper instructions and unlawful activity 5 Duty to disclose unprofessional conduct of colleagues 5 Professional rapport, tactics and communications with colleagues 6 Instructions 8 References 9 Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted or implied by the authors or the Law Society of New South Wales and any liability is hereby expressly disclaimed.
The following is for guidance only. Advice should be sought for the reader's particular circumstances. References to the Rules are to the Conduct Rules 2015 CONFIDENTIALITY Q.1 What is the duration of the duty of confidentiality? A. The duty of confidentiality continues after the solicitor-client retainer has ended. Upon the death of the client, confidentiality passes to the client's legal personal representative. Rule 9.2 sets out the exceptions to this rule. "Confidential information" is not defined in the Rules but may include: · information regarding a former client which is directly related to a matter with a current client; · information relevant to a competitor such as product pricing; and · in certain situations, particular intimate knowledge of a client, their character, business or strategies. Q.2 What is the position in relation to confidentiality when: (a) Solicitor A is subpoenaed to give evidence in proceedings where a former client is a party, and (b) Solicitor B (who issued the subpoena) also asks Solicitor A for a statement? A. Solicitor A cannot be compelled, in these circumstances alone, to provide a statement to Solicitor B. While Solicitor A is required to comply with the subpoena, the mere request for a statement from Solicitor B cannot be enforced. Rule 9 requires Solicitor A not to disclose any confidential information acquired during the client's engagement, unless the circumstances outlined under Rule 9.2 are satisfied. It would therefore be inconsistent with the confidentiality obligations owed by Solicitor A to the former client to disclose to Solicitor B any of the client's confidential information, unless one of the exceptions had been met (e.g. client consent or court compulsion). PROFESSIONAL ETHICS, TACTICS AND COMMUNICATIONS WITH CLIENTS | FREQUENTLY ASKED QUESTIONS 3 -------