ATP 105 Professional

Ethics - 2023
LECTURE 7 – DUTIES TO CLIENTS – THE DUTY OF LOYALTY (CONFIDENTIALITY)
Course Instructor – Stephen Mallowah LLB, LLM, MSc
DUTY OF CONFIDENTIALITY
 Structure
• Confidentiality as a common law and fiduciary obligation
• Rationale
• Exceptions
• Advocate-client privilege
• Statutory underpinnings
• Scope
• Exceptions
• Remedies for breach/strategies for law firms
 Objectives
• Define confidentiality
• Differentiate between the duty of confidentiality and privilege
• Define the scope of protection
• Justify the need for the duty of confidentiality and privilege
• Describe the exceptions to the duty of confidentiality and
privilege
• Prescribe remedies for breach
• Advance suggestions for reform.
 Source
1. Common Law
2. Duty stems from fiduciary relationship that is established between the
advocate and client
3. Contract law- implied or expressed in the retainer
4. Equity- prohibits unauthorised use or disclosure of confidential
information
5. Agency law- advocate is agent of client and must work within the scope
of his authority
6. Professional rules eg Rule 20 of the Law Society Digest of Conduct
and Etiquette 2000
7. Code of Ethics and Professional Conduct for Advocates 2016
Principle 5, Rule 7 and Guidance 98-115
 What is confidentiality?
• Duty of an advocate not to disclose communication undertaken
between the client and the advocate. Broadly speaking the
advocate is obligated to respect the confidentiality of his client’s
affairs.
• It is an ethical concept
• It is of essence of a lawyer’s function that the lawyer should be
told by his or her client information that the client would not tell to
a third party and the lawyer should be the recipient of the
information on the basis of confidence. Without the certainty of
confidentiality there cannot be trust. Confidentiality is therefore a
primary and fundamental right and duty of the advocate.
 What is confidentiality? – Principle 5
• The right and duty of the legal professional to keep
confidential information received from and advice given to
the client is an indispensable feature of the rule of law and
essential to public trust and confidence in the administration
of justice.
• It enhances the client’s trust in the legal professional and
facilitates full and frank communication between the
Advocate and the client. Advocate-client confidentiality must
be nurtured, respected and protected by regulatory
authorities, fellow professionals and the legal professional
himself/herself.
 What is confidentiality? – Rule 7
• Communication between the Advocate and client is
protected by the rule on confidentiality of Advocate-
client communication.
• The Advocate has a duty to keep confidential the
information received from and advice given to the
client. Unauthorized disclosure of client confidential
information is professional misconduct.
• At the same time the Advocate has a duty to
safeguard against the abuse of Advocate-client
confidentiality to perpetrate illegal activity.
 ABA 1.6
• “A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed
consent, or the disclosure is impliedly authorised in order
to carry out the representation…..”
 Justification
• Enables full and frank disclosure
• Promotes the Advocate’s work as an officer of the court
• Promotes public confidence in advocates and their work
• A constant reminder of the loyalty advocates owe to their client
• Protects the human dignity of the client
• In criminal cases it is used to prevent the use of tricked
confessions and admissions
 Full and frank disclosure
• Century Oil Trading Company Limited V Kenya Shell
Limited (2008 eKLR)
• Warsame J “ In my understanding and in its usual form an
advocate-client privilege is that a client is entitled to prevent
an advocate from using, in a manner adverse to a client’s
case any knowledge or information which the advocate has
gained while acting on behalf of the client. The purpose of
such privilege is to promote openness between lawyers
and clients. Clients tend to believe that nothing they say will
be used against then to the advantage of their adversary.”
 Officer of the Court
• Section 55 of Advocates Act
• Upjohn V United States, 449 U.S 383 (1981)- the court
extended privilege and reasoned that the doctrine was to
encourage full and frank communication between
attorneys and clients and thereby promote broader public
interests in the administration of justice.
 Public confidence in advocates
• Grant V Downs (1976) 135 CLR 674
• “the rationale for this head of privilege, according to the
traditional doctrine is that it promotes the public interest
because it assists and enhances the administration of justice
by facilitating the representation of clients by legal advisers,
the law being a complex and complicated discipline. This it
does by keeping secret their communication , thereby
inducing the client to retain the solicitor and seek his advice
and encouraging the client to make a full and frank
disclosure”
 Duty of loyalty
• Duty of loyalty also includes effective representation:
United States V Hodge and Zweig Am 548 F 2d 1347
“….the client should make a full disclosure so that the
advice given is sound, so that the attorney can give all
appropriate protection to the client’s interest, and so that
proper defenses are raised if litigation results…”
 Others
• Protects human dignity:
• Article 28 CoK
• Prevent tricked confessions:
• Eg if client discloses guilt to advocate, the disclosure
cannot be divulged by the advocate in furtherance of a
confession or admission. See Digest Rule 20
 EXCEPTIONS
• Client authorization
• Disclosure compelled by law
• Disclosure ostensibly to support advocate’s interest
• Disclosure of information that is not confidential
• Disclosure for purposes of probate
 Client authorization
• As lawyer-client confidentiality exists for the benefit of the client, the
confidence is the client's to waive or modify. Hence, the lawyer can
reveal confidential information to third parties where the client allows
such an action. However, consent to allow the disclosure of confidential
information does not entitle the lawyer to disclose or use the
information for other purposes than those specified by the client.
• The authorization does not necessarily have to be explicit. It can be
inferred from the terms or nature of the retainer agreement. The idea
that all information imparted within a retainer is confidential is
impracticable.
• Often, much of that information is communicated so that it can be
disclosed to dispose of a matter, claim, or legal issue. Hence, where
information is incidental to the conduct of a retainer, client authorisation
can be generally taken as given. Nonetheless, where there is
uncertainty, express authority should be sought from the client.
 For the lawyer’s benefit
• Lawyers may disclose confidential information relating to the retainer
where they are reasonably seeking to collect payment for services
rendered. This is justified on policy grounds. If lawyers were unable to
disclose such information, many would undertake legal work only
where payment is made in advance. This would arguably adversely
affect the public's access to justice.
• Lawyers may also breach the duty where they are defending
themselves against disciplinary or legal proceedings. A client who
initiates proceedings against a lawyer effectively waives rights to
confidentiality. This is justified on grounds of procedural fairness - a
lawyer unable to reveal information relating to the retainer would be
unable to defend themselves against such actions.
 Compelled by law
• Where expressly provided for in statute, lawyers must comply with any
parliamentary requirement necessitating breach of the duty to
confidentiality.
• See section 17 of the Proceeds of Crime and Anti-Money Laundering
Act Cap 59B( “..provisions of the Act overrid e obligations of secrecy
or any restriction to disclosure of information imposed by law or
otherwise. No liability arises from such disclosure)
• Lord Denning in Parry-Jones v Law Society said at 6-7:
• "the solicitor must obey the law, and, in particular, he must comply with
the rules made under the authority of statute for the conduct of the
profession. If the rules require him to disclose his client's affairs, then
he must do so." Statutory abrogation of the duty is limited in scope
and purpose however. Requirements are never blanket decrees for
the revelation of confidential information. Rather they are based on
upholding the public interest, where such interests override client
interests in maintaining confidentiality”
 Information is not confidential
• Clearly, information that is not confidential does not fall under the
duty of confidentiality. Disclosure of information that is already in the
public domain does not breach the duty. Further, information that
was not in the public knowledge at the time of the retainer
agreement, is not subject to the duty if it subsequently enters the
public domain. The purpose served by maintaining the confidence -
the protection of the client - is arguably extinguished.
• Nonetheless, the lawyer still owes a duty of loyalty, and clients may
feel betrayed if such information is disclosed, even if it becomes
public knowledge. Though there are no legal ramifications for
disclosure, discretion on part of the lawyer may be in the long term
interests of maintaining the propriety of the legal profession.
 Probate
• Another case is for the probate of a last will and testament.
Previously confidential communications between the lawyer
and testator are no longer secret for the purpose of proving
the Will is the intent of the now deceased decedent. In many
instances, the will, codicil, etc require explanation or
interpretation through other proof (extrinsic evidence), such
as the attorney's file notes or correspondence from the client.
• In certain cases, the client may desire or consent to revelation
of personal or family secrets only after his or her death; for
example, the Will may leave a legacy to a a child born outside
wedlock.
 Generally
• Duty continues even after representation ends
• Duty not only prohibits revealing of information but
proscribes a lawyer’s use of the information to the
disadvantage of the client.
STATUTORY/ EVIDENTIARY
PRIVILEGE
 Definition
• It is the evidentiary principle that confidential communications
between advocates and the representatives and clients that
are made for the purpose of obtaining or rendering legal
advise or representation and not in furtherance of a crime
or fraud cannot be the subject of compelled disclosure. The
privilege belongs to the client
• An advocate may have a duty of confidentiality with regard to
information he has about his client but because the
information is not privileged he can be compelled to disclose
it.
 Advocate-client privilege
• United States V. United Shoe Machinery Corp. Civ A.
United States District Court D. Massachusetts.
– The Asserted holder of the privilege is or has sought to become a
client
– The person to whom the communication is made is an advocate or
his representative
– The communication is a fact the advocate was informed by his client
without the presence of strangers and was for securing legal
opinion, services or assistance and not for committing a crime
– Privilege has been claimed and not waived by client.
 Advocate privilege
• Evidence Act cap 80
134. (1) No advocate shall at any time be permitted, unless with his
client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as
such advocate, by or on behalf of his client, or to state the
contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in
the course and for the purpose of such employment
 Client privilege
• s137 No one shall be compelled to disclose to the court
any confidential communication which has taken place
between him and his advocate unless he offers himself as
a witness, in which case he may be compelled to disclose
any such communications as may appear to the court
necessary to be known in order to explain any evidence
which he has given, but no others
 Basics
• There must be an advocate, client
• A relationship of advocate client must exists
• Communication must be in the course of his employment
as an advocate
• Elements of communication privilege
– Litigation privilege
– Work product privilege
– Legal advise privilege
 Scope
• S134 (2) The protection given by subsection (1) shall
continue after the employment of the advocate has
ceased. The general rule is “once privileged, always
privileged”
• S135 Extends to interpreters, clerks and servants of
advocates
 Exceptions
1. Client express consent (S 134)
134 (1) Provided that nothing in this section shall protect from disclosure–
2. (a) any communication made in furtherance of any illegal purpose;
3. (b) any fact observed by any advocate in the course of his employment
as such, showing that any crime or fraud has been committed since the
commencement of his employment, whether the attention of such
advocate was or was not directed to the fact by or on behalf of his client.
4. S136(2) If any party to a suit or proceeding calls any advocate,
interpreter, clerk or servant as a witness, he shall be deemed to have
consented to such disclosure as is mentioned in section 134 (1) only if he
questions such witness on matters which, but for such question, the witness
would not be at liberty to disclose.
 Digest Rule 20
• Income Tax officials:
• Advocates not to disclose address of clients without authority
or client consent
• Not to disclose details of transactions without client’s consent
or waiver of privilege
• Commissioner of Income Tax agreed that S 61 of Income
Tax(returns on income received on behalf of another) will not
apply to advocates
• If client is abroad then if asked for address, test is if it was a
secret.
 Digest Rule 20
• Privilege is of client not advocate
• Object is to ensure client gives full and frank disclosure
• Advocate’s privilege not greater that client’s right eg if
client cannot forestall discovery then no privilege.
• No privilege in communications made in furtherance of a
crime or fraud. Communications made for purposes of a
defence in criminal proceedings is privileged.
• If in doubt, claim privilege
 Constitution
• Article 2- limitation of rights
• Article 31-right to privacy
• Article 36- right to access information
 Generally
• Information must be intended to be confidential-if given in
presence of unnecessary third parties then it is not
privileged
• If advocate represents several clients jointly then privilege
applies to communication between clients and advocate.
A joint client cannot assert privilege to the detriment of
others
• Inadvertent disclosure may or may not waive privilege.
 Jurisprudence
1. R v Derby Magistrates' Court, ex p B [1996] AC 487
2. Minter -v- Priest [1930] AC 558 HL
3. Three Rivers District Council v Bank of England (No 5) [2004] 3
WLR 1274
4. United States of America, Appellant, v. Louis Leventhal et al.,
Appellees. 316 F.2d 341 No. 17107. United States Court of Appeals
District of Columbia Circuit Argued December 12, 1962. Decided
January 24, 1963
5. United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358–59
(D. Mass. 1950).
6. Privacy Commissioner of Canada vs Blood Tribe Health
Department 2008 SCC 44
 Jurisprudence
7. Esso Australia Resources Ltd v Commissioner of Taxation
(1999) 168 ALR 123.
8. Republic v Minister for Finance & Commissioner of domestic
taxes Exparte LSK[2006] eKLR NRB HC MISC APP 644 of
2005 Nyamu J
9. Clark v. United States, 289 U.S. 1, 15 (1933)
10.Upjohn Co. v. United States, 449 U. S. 383, 389 (1981)
11.United States v. Bauer 132 F.3d 504 (9th Cir. 1997) vs. In re
Grand Jury Proceedings (1996) (9th Cir. 1996)
12.United States v. Hodge and Zweig a M 548 F. 2d 1347
 Jurisprudence
13.Ogden v. London Electric Railway Co. (1933) 49 T.L.R. 542,
14.Campbell v United Kingdom [1992] 15 EHRR 137
15.R vs Peterborough Justices ex parte Wicks 1977 1 WLR
1371 1978 1 ALL ER 225
16.Alfred Crompton Amusement Machines v. Customs and
Excise Commissioners (No. 2) [1974] A.C. 405;
17.Birmingham Omnibus Co. Ltd. v. L.N.W.R. Co. [1913] 3 K.B.
850
18.Re Sarah C Getty Trust, Getty v Getty [1985] QB 956
Remedies for breach
 BREACH
•The case for immunity
•Burden and standard of proof
•Possibility of multiple and parallel proceedings
ØTermination of the relationship
ØAction in contract
ØAction in tort
ØAction in Equity
ØAction in criminal law
ØProfessional remedies
ØFees disgorgement/forfeiture: giving up of fees
 Remedies for breach
qMultiple options which can proceed simultaneously
(see John Kinyanjui vs R)
S 55 56 53 60 85 advocates act, s 193A CPC
1. Civil action for damages
2. A prayer for accounts
3. Taxation of costs
4. Criminal action
5. Professional sanctions at the Complaints
Commission/Disciplinary Committee and The Court
 FORA
•Civil proceedings’
•Criminal proceedings
•Complaints Commission
•Disciplinary Tribunal
•KNCHR
•CAJ
•Non formal or informal redress mechanisms
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