Careless Talk and the Duty of Confidentiality

this post is by Sarah Phillimore, a barrister. 

Unbelievable having lunch at my usual cafe , 2 social workers discussin case at the next table laughing and joking , making me feel sick. This is private stuff and I’m not the only one who can hear there discussion.

Parent, posting on Facebook Group UK Social Services

Reading that comment from a parent made me feel very uneasy. It’s common for groups of lawyers and social workers who know each other well to take their discussions at court outside, for a coffee.

A frequent complaint made to me from parents is just how difficult it is for them to see lawyers and social workers laughing and chatting together; even if it isn’t a particular case they are discussing.

But its more than just insensitive to have these kind of relaxed ‘chats’ within ear and eyeshot of traumatised parents; it could also land you in very hot professional water if you carelessly breach confidentiality.

For example, it is one of the ‘Core Duties’ of the Barristers’ Code of Conduct that:

you must protect the confidentiality of each client’s affairs, except for such disclosures as are required by law or to which your client gives informed consent.

Further:

The duty of confidentiality is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, the information will be privileged and not disclosed to a court… Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required by law.

The Professional Practice Committee (PCC) of the Bar Council considered the issue of what may or may not be disclosed by a barrister and advised that a barrister should tell the client as soon as possible about the broad ambit of his or her professional duty:

  • Counsel’s role is to represent the client and to present the client’s case to the best of his or her ability;
  • Counsel has a duty of “full and frank” disclosure in respect of relevant material that is disclosed by the client and which impacts upon the welfare of the child;
  • Counsel is not in a position to conduct a trial or proceedings whilst withholding or concealing relevant information from the parties and the Court;
  • The duty of confidentiality to the client owed by Counsel and contained in the Core Duties at CD6 may be overridden as permitted by law. In particular, any information which reveals a serious risk to the welfare of a child, or serious harm to a third party, may have to be disclosed even if Counsel’s instructions are discontinued.

The PCC consider that the duty on family lawyers to make ‘full and frank’ disclosure of issues that relate to the welfare of a child have given rise to a particular ‘culture’ in family proceedings that the client is advised to consent to disclosure of information that might be unfavourable to the client, because:

  •  that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court to disclose relevant material to the court even if that disclosure is not in the interests of the client;
  • that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child);
  • that full and frank disclosure is more likely to result in parents’ and/or carers’ needs being properly identified, which in turn will have a positive impact upon the child if they are considered able to care for the child;
  • that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage;
  • that in acting for a client counsel cannot mislead the court in any way.

The PCC make it clear that if a client doesn’t accept the advice that it is best to be up front about unfavourable information which relates to the welfare of a child,  the barrister will probably need to withdraw from the case, given the risks that this runs of misleading the court.

Privileged information

There are two types of ‘legal professional privilege’ which may operate to keep some information confidential, even taking into account the duty of ‘full and frank disclosure’.

  • Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated;
  • Litigation privilege is wider, covering for example communications between a legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.

The courts have decided that litigation privilege does not apply in care proceedings as they are meant to be non-adversarial. Thus all reports obtained from third parties should routinely be disclosed.

However information may still be privileged if the documents under scrutiny were prepared for the purposes of criminal proceedings (see S County Council v B [2000] 2 FLR 161 where the court held a parent could claim legal professional privilege in care proceedings in respect of communications with medical experts who had been instructed solely for criminal proceedings).

Communications between a client and his legal adviser remain privileged in family proceedings. This is considered a very important principle for the administration of justice –  a client must be free to consult his legal advisers without fear of his communications being revealed.

There is one exception to this – if the communications reveal a crime has been committed or is intended to further a criminal purpose.

 

A Barrister’s obligations to the court where there are concurrent care and criminal proceedings.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam):

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds. 

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014].

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