Ronald Fletcher Baker acted for a client seeking to protect his confidential information after his solicitors were acquired by the firm acting against him in ongoing antagonistic litigation. We engaged in extensive correspondence with the other firm to understand and subsequently challenge the adequacy of the measures it had implemented to protect our client’s confidential information. Following time-sensitive negotiations and an injunction application to restrain the firm from acting, we secured an agreement for formal solicitor undertakings confirming that our client’s confidential information would remain behind confidential information barriers and would not be accessed or used by those acting against him plus 87% cost recovery.<\/p>\n\n\n\n
We describe below the legal principles concerning the duty of confidentiality owed by solicitors to former clients and what steps the courts expect law firms to take to safeguard confidential information belonging to a former client, including the possibility to obtain an injunction to prevent the law firm acting entirely.<\/p>\n\n\n\n
It is a long established common-law principle that \u2018the first duty of an attorney is to keep the secrets of his client.1<\/a><\/sup> This duty, which plainly applies during the retainer, persists after the retainer has been terminated. Paragraph 6.3 of the Solicitors Regulation Authority Code of Conduct for Solicitors<\/a> and the Code of Conduct for Firms<\/a> requires that lawyers (and their support staff) must keep the affairs of current and former clients confidential unless disclosure is permitted or required by law or client consent has been obtained. Alongside this, paragraph 6.4 imposes a separate duty of disclosure. A solicitor must disclose to a client all information relevant to his matter.<\/p>\n\n\n\n Issues arise when these two duties collide. For example, a solicitor may be instructed to act on a new matter where the new client\u2019s interests are adverse to those of a former client. If the solicitor holds confidential information from the former client that is material to the new case, the duty of confidentiality may prevent disclosure, while the duty of disclosure would otherwise require it. Whilst the law firm can choose to act against a former client as any strict potential conflict of interest ends upon the termination of their retainer, the duty of confidentiality continues to attach to the former client which may tie their hands.<\/p>\n\n\n\n As such, SRA rule 6.5 provides that a solicitor must not act for a client whose interests are adverse to those of a current or former client if the solicitor holds confidential information that is material to the matter. Note that adverse interest here refers to adverse legal interest and not commercial interest.2<\/a><\/sup> The prohibition in rule 6.5 applies unless either:<\/p>\n\n\n\n A law firm may rely on the second exception only where the measures adopted by them satisfy the stringent two-part test established by the House of Lords in HRH Prince Jefri Bolkiah v KPMG [1999] 2 AC 222<\/a>. This test applies to both solicitors working in private practice and to those working in-house. 3<\/a><\/sup> The first stage of the test is that the claimant must establish that there is a real risk of disclosure of confidential information \u2013 one that is more than fanciful or theoretical but the risk does not have to be substantial 4<\/a><\/sup> and that the confidential information is relevant to the claim. 5<\/a><\/sup> This is not a heavy burden and is usually made out relatively easily if the information held by the law firm relates to the same matters. Once the first part of the test is satisfied, the burden then shifts to the law firm to demonstrate that there is, in fact, no real risk. 6<\/a><\/sup> This is usually done by way of demonstrating stringent, pre-existing information barriers ensuring that the lawyers and support staff working for the former client have no contact with the person involved for the new client and that the new persons are unable to access the old files.7<\/a><\/sup> If the law firm\/solicitor cannot produce clear and convincing evidence that effective safeguards are in place, the court will restrain them from acting.<\/p>\n\n\n\n When assessing the adequacy and effectiveness of the steps taken, the starting point for the court is \u2018unless special measures are taken, information moves within a firm\u2019<\/em>.8<\/a><\/sup> However, this appears to only be a starting point and it was noted in Koch v Butler [2002] that \u2018each case turns on its own facts\u2019<\/em>. 9<\/a><\/sup> The crucial question, in each case, is \u2018will the barriers work?\u2019.10<\/a><\/sup> While it initially appeared from Lord Millet\u2019s speech in Bolkiah that any barriers erected must be \u2018an established part of the organisational structure of the firm\u2019 and \u2018not created ad hoc\u2019, subsequent caselaw11<\/a><\/sup> and commentary suggests that this is no longer a hard and fast rule. One legal textbook states that there is \u2018no rule of law which requires there to be information barriers at all to show that there is no real risk of misuse.\u2019<\/em> 12<\/a><\/sup> Other steps such as the provision of undertakings by the relevant individuals are also given considerable weight by the court.13<\/a><\/sup> What the court is looking for is that the steps taken by the solicitor produce the modern equivalent of the circumstances in Rakusen v Ellis, Munday & Clarke [1912], 14<\/a><\/sup> where two partners within the same firm operated, what was, in substance, two separate practices.15<\/a><\/sup> <\/p>\n\n\n\n An extreme example where the Bolkiah test was successfully used to restrain a law firm is Georgian American Alloys v White & Case [2014].16<\/a><\/sup> Here, White & Case had implemented ethical screens, appointed a Neutral Team to investigate possible breaches of confidentiality, and the relevant teams were geographically separated. These measures were held to be insufficient and an injunction was granted. The reasons for this were that there were periods when the members of the relevant team were in the same office (which could lead to information passing second hand) and information barriers were not present throughout the whole period. As such, it really does come down to a case by case assessment by the Court.<\/p>\n\n\n\n The courts and the Solicitors Regulation Authority have established clear tests which law firms must keep in mind when seeking to act in matters involving former clients. The strict nature of the law in this area reflects the fundamental importance of preserving client confidentiality and the trust that the clients place in their solicitors. Lord Millet put it best:<\/p>\n\n\n\n \u2018It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret\u2026It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.\u2019<\/em> 17<\/a><\/sup><\/p>\n<\/blockquote>\n\n\n\n If this principle is put at risk, the Court will restrain law firms from acting against their former clients. RFB are able to assist with such injunctive applications if you find yourself fighting against your former solicitors. <\/p>\n\n\n\n If you require assistance in relation to these issues, please contact Ben Frost at b.frost@rfblegal.co.uk\u00a0<\/p>\n\n\n\n <\/p>\n\n\n <\/p>\n","protected":false},"author":23,"featured_media":10731,"parent":0,"menu_order":0,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"footnotes":"[{\"content\":\"Taylor v Blacklow (1836) 132 E.R. 401<\/a>\",\"id\":\"2267a69d-a48f-44aa-9616-958c4c3d9278\"},{\"content\":\"Charles Hollander KC and Simon Salzedo KC, Conflicts of Interest (7th edn, Sweet & Maxwell 2026) 15-014.\",\"id\":\"1ee00921-4748-4f34-ab78-8e81c17bb31e\"},{\"content\":\"Western Avenue Properties Ltd v Soni [2017] EWHC 2650 (QB)<\/a>.\",\"id\":\"2b156364-3272-42be-977b-2019ec3b1936\"},{\"content\":\"Bolkiah [237A] (Lord Millett)<\/a>.\",\"id\":\"acd4fcfd-7281-420d-88a9-66d3b2c7f09c\"},{\"content\":\"Bank of London Group Ltd v Simmons & Simmons LLP [2022] EWHC 2617 (Ch) [23-24]<\/a>.\",\"id\":\"e506c6f0-9035-4530-bacb-d6d10f957986\"},{\"content\":\"Conflicts of Interest (n 2 above) 8-007.\",\"id\":\"90dfd9b8-bac9-41f6-93b8-478864dca6fe\"},{\"content\":\"Bolkiah<\/a> [237H] \u2013 [238A] (Lord Millet)<\/a>.\",\"id\":\"45de2ed0-e673-48b2-bd36-94c829aa1c63\"},{\"content\":\"Ibid [237G]-[237H].\",\"id\":\"25c12176-d724-4b1d-8b9a-df6229bd46e1\"},{\"content\":\"Koch Shipping v Richards Butler [2002] EWCA Civ 1280 at [25]<\/a>.\",\"id\":\"ad0478bc-bc6d-4ac8-bf2c-e4f75604a27d\"},{\"content\":\"Young v Robson Rhodes [1999] EWHC Ch 242 at [42]<\/a>.\",\"id\":\"2a75ae39-b7ac-4bdd-b92f-c0156407e772\"},{\"content\":\"Ibid.\",\"id\":\"42e86182-947d-4af8-b124-ee109c7f4dd9\"},{\"content\":\"Conflicts of Interest (n 2 above) 7-013.\",\"id\":\"a46f4248-c612-4d83-8886-cfe330cd22a5\"},{\"content\":\"Simmons & Simmons LLP (n 6 above) at [32].\",\"id\":\"b8a0037c-fd53-4ac5-9c7f-5bcacd8e026b\"},{\"content\":\"Bolkiah [238H] \u2013 [239A] (Lord Millet)<\/a>.\",\"id\":\"369bed63-0843-4af0-9880-01bedf31e842\"},{\"content\":\"Rakusen v Ellis, Munday & Clarke[1912] 1 Ch. 831, C.A<\/a>.\",\"id\":\"3143b85b-fc55-4ffc-b2d8-e909b149bc05\"},{\"content\":\"Georgian American Alloys and Ors v White & Case [2014] EWHC 94 (Comm)<\/a>.\",\"id\":\"5b5da019-1943-458d-b485-e2ea7645cfc5\"},{\"content\":\"Bolkiah [236H] (Lord Millett<\/a>)\",\"id\":\"25c3e3a5-ac4b-47e6-bd27-826934bd4bb3\"}]"},"categories":[62],"tags":[],"class_list":["post-10656","insight","type-insight","status-publish","format-standard","has-post-thumbnail","hentry","category-commercial-litigation"],"acf":[],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n
Final Thoughts<\/h2>\n\n\n\n
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