Confidentiality

Front 1

Which parts of the handbook require barristers to preserve client confidentiality?

Back 1

CD6; rC5 (your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential); rC15.5 (you must protect client confidentiality except where required or permitted by law or where the client gives informed consent).

Front 2

What is Core Duty 6?

Back 2

You must keep the affairs of each client confidential.

Front 3

What could result from allowing other people to see confidential material?

Back 3

Disciplinary action by the BSB

Front 4

What could result from losing a USB stick on which unprotected confidential information is stored?

Back 4

Disciplinary action by the BSB

Front 5

What could result from not disposing of client papers securely?

Back 5

Disciplinary action by the BSB

Front 6

Under the Data Protection Act 1998, what are barristers?

Back 6

Data controllers

Front 7

Whose conduct are barristers responsible and what does this mean for confidentiality?

Back 7

All those who undertake work on their behalf. They should ensure that clerks and chambers staff are aware of the need to handle and dispose of confidential information securely. Chambers must have appropriate systems for looking after confidential information.

Front 8

What should arrangements for looking after confidential information cover?

Back 8

- handling and storage

- distributing papers and sending faxes and emails

- the use of removable devices

- secure disposal

Front 9

What arrangements should be in place for the handling and storage of confidential information?

Back 9

- Papers should not be left nor computers used where other people can read them.

- Papers should be stored in a way which minimises the risk of unauthorised access

- computers should be password protected

Front 10

How should removable devices (such as laptops, USB sticks and PDAs) be used?

Back 10

- only for information needed for immediate business purposes, rather than permanent storage.

- information should be at least password protected and preferably encrypted

- great care should be taken to ensure devices are not lost or stolen

Front 11

How should confidential material be disposed of securely when no longer required?

Back 11

Eg, by returning it to the client or professional client, shredding paper, permanently erasing information or securely disposing of any electronic devices holding confidential information.

Front 12

When will additional safeguards be needed for confidential material?

Back 12

- for particularly sensitive information

- for cases in which counsel from the same chambers are appearing on opposing sides.

Front 13

What should you do if you innocently receive confidential or privileged information of another person relating to your case and realise before reading it?

Back 13

You should return it to its owner unread but you could continue to act for your client.

Front 14

What should you do if you innocently receive confidential or privileged information of another person relating to your case and realise after reading it?

Back 14

You should return it to its owner and are at the mercy of your opponent who may seek an injunction to restrain you from continuing to act. You must inform your opponent, and iff they do not seek an injunction you *may* continue to act and may make use of the information. But given that an injunction is almost guaranteed to be sought and granted, delaying in withdrawing will likely lead to greater prejudice to the client when you are restrained and so you should withdraw.

Front 15

What should you do if you innocently receive information of another person relating to your case and realise after reading it, but consider that it is not subject to privilege and so should have been disclosed?

Back 15

The public interest behind disclosure probably overrides the public interest behind LPP, so you could take the view that you can continue to represent the client and make use of the information. You would have to inform your opponent of your view and intention, who may then apply for an injunction and the court may agree that LPP applies. An injunction or voluntary withdrawal would then be inevitable.

Front 16

What should you do if a client instructs you to read confidential docs or read and not disclose this or not tell the opponent that you have them?

Back 16

Consider whether this is compatible with Code obligations. This would almost certainly be in breach of, eg, CD1, 3 & 5 or rC21.5/6 and require withdrawal under rC25