Duty Of Confidentiality And Consequences Of Breaching Them

Overview of the case (Jack v John)

Discuss about the Duty of Confidentiality.

Under extreme circumstances when administering justice, the duties of a solicitor gets interfered with when acting in the clients best interests. The law requires that the solicitors offer precedence to their duties to justice administration [1]. Sometimes situations arise when the duties of the solicitor conflict with that of their clients. In this case, Derek Delaney of DD Law is the solicitor, and Jack is his long term client. The litigation between Jack and his former business partner John, which led to a lawsuit against Derek’s client worth $250,000 automatically required the solicitor(Derek) to act on the case appropriately. However, the manner by which Derek conducted the case did not please Jack his client, a situation which made the client ask Drek for advice on the likelihood of success of an appeal.

Under the duties of the solicitor, the law requires that a lawyer must respect the policies which govern their responsibilities and that they must act with competence, honesty, and courtesy to other solicitors, parties and witnesses [2]. A solicitor should act with due diligence, be straightforward, and act freely from any personal bias. From this case, Derek(the solicitor) does not observe these principles governing all lawyers duties. First and foremost, Derek does not respond to John's solicitor notice, and this shows his lack of respect and courtesy. When John's solicitor gives Derek a notice that Jack will be declared bankrupt if he fails to pay the money owing to him, Derek lacks the attribute of frankness and does not notify Jack. Further, despite the fact that Derek fails to respond to Jack's correspondence, he also does not subpoena witnesses who deem crucial to the success of his client's case.

Grounded on the facts portrayed in the above case analysis between Jack and John, about Jack's solicitor's manner of conduct, the following are the potential consequences of the facts to Derek.

Derek involves his professional duties in conducting dishonesty activities which undermine the administration of justice. The solicitor (Derek), does not show the professional code of honesty, frankness, and full disclosure to his client Jack. Since the law requires that all professionals act with honesty and openness to the customer, it is a misconduct for Derek when he fails to notify Jack that unless he paid the money owing to his name were paid, he would be declared bankrupt [3]. Further, Derek does not show the principle of honesty to his client when Jack continually sends him letters and emails seeking advice on the appeal of the case for he does the unexpected by not responding to any of the customer's correspondence. This misconduct by Derek is gainst the requirements by the law and attracts dire consequences to the solicitor.

Termination of Professional Licences by the Australian Judiciary

The most potential consequences to Derek for this misconduct are termination of a professional licence by the judiciary and civil lawsuits which may attract a substantial financial loss [4]. Since Derek constitutes a contract with Jack, the breach of the terms of the contract both express and implied creates damages to the client worth $250,000. The customer's act of filing a lawsuit against the solicitor would force the solicitor to pay for the damages caused to the customer due to his ignorance and negligence. Once a solicitor is seen to act against the professional codes of practice, as in this case then the court may dismiss his professional licence [5]. Derek is at the risk of losing his legal professional licences for lack of discipline as far as his client is concerned.

Since the law requires that the solicitor should exercise due diligence in observance of their duties and that they should not mislead the court, then Jack may sue Derek for his misconducts. As seen in the case, Derek does not show due diligence in observance of his undertakings when he does not respect the Commissioners request to him to explain his misconduct. Derek's fault comes clear when  Jack is served with a bankruptcy letter without being aware and yet the solicitor had been issued with the same notice and decided not to inform the client [6]. Due to this misconduct of not observing the instructions by the court and also not exercising his duties to the client as required by the law, the client has a legal right to sue Derek in a court of law for civil wrongdoing.

Once the client files a civil lawsuit to the court against the solicitor's misconduct, Derek will be termed liable of all the loss caused to Jack and thus will be required by the law to pay amount worth $250,000. Derek's misconduct of mot being straightforward to Jack would cost him a lot and be probably be forced by the court to compensate his client for the harm that resulted from his inaction to protect Jack from this ultimate loss.

Derek does not show courtesy to other solicitors. This misconduct is evident when John's solicitor unless the money owing to Jack got paid; bankruptcy proceedings would be filed against his client. Derek never responded to this notification, and this shows hows disrespectful he is to the other professionals. This act is consequential to his professional position and membership in lawyers professional body of Australian. For one to maintain his position as a member is a professional body, the Australian law requires that he must show respect towards other solicitors and parties in the case. It is a crime for a solicitor to be less cautious when handling correspondence from other solicitors, and this calls for taking a disciplinary action against Derek for not showing courtesy to John's solicitor regarding bankruptcy order and notice to Jack, Derek's client [7].

Civil Law Suit by the Client, Jack

Losing His Long Term Client (Jack), and Other Potential Clients

Losing clientele would cause an adverse impact to Derek as this will adversely affect his net earning as well as damaging the firm's reputation to the members of the public. Derek's failure to subpoena witnesses whose opinions were deemed crucial to the success of his client's case shows his lack of independence and inability to influence and advice witnesses as in this case influencing the key witnesses was paramount [8]. As oper the requirements of the law, since Derek had signed the contract to represent Jack in the court of justice, he should have then exercised reasonable care and skill to prevent the client from this financial loss against his former partner John. Derek's misconduct of not showing his passion and commitment in defending Jack would force this customer to withdraw his services from the solicitor, something which would cause an ultimate impact on the net earnings of Derek.

The law requires that the relationship between a client and his lawyer should be confidential. The law provides that an agent must not abuse his position of confidence by either disclosing the client's information or by abusing his rights and duties as per the duties rationale, source, duration, and scope [9]. From the case study, the two brothers Nifty and Shifty have been conducting illegal business in the distribution of and importation of illegal weapons. The revelation by Nifty to the lawyer of this information caught the lawyer unaware and unexpectedly. However, Nifty believed that it was confidential information nd that the lawyer should never disclose this data to anyone other than the two partners. As a matter of concern, as a lawyer, I found out that the two partners have bribed customs officials to facilitate smooth passage of shipments to Nifty. As a lawyer who acts independently, diligently, and professionally, it is against the law to engage in such contracts with fraudsters.

Using the authority bestowed to me by the law and based on the facts provided by this case, the following are my responsibilities in the production of all documents relating to Nifty’s business dealings to the police.

The professional conduct and practice rules 2013(NSW), to this extent, restricts a solicitor and a lawyer from disclosing to any person any confidential information relating to the client. The law requires that under express and implied contractual doctrines, the two parties should serve to safeguard the confidentiality of information when the confidants believe that disclosing the information would create inconsistencies with the purpose for its communication [10]. The fact that the importation and distribution of illegal weapons by Nifty's is believed to be confidential, and that I, the lawyer am aware of this fact, I should then not disclose the matter to the NSW Crime Commission without Nifty's consent. When it comes to issues relating to the bribery of customs officials from the borders, I should act professionally since I do not know how Nifty's conducts the activity by advising the police to consult the two partners [11]. Disclosing confidential information which I just know as a hint is not my responsibility, my responsibilities are governed and clearly stated in the terms and conditions of the contract.

Losing Membership to Professional Bodies

However, there are exceptions to the duty to put privacy at the risk of acting on the customer's instructions and interest. The confidentiality of customers information should be maintained by the lawyer except where disclosure is required and permitted by the law.

Responsibility of disclosure

A lawyer acting to protect the affairs of the client must disclose to the Crime Commission and the police information which is suspected or deemed to be illegal as per the public policy [12]. Grounded in this case, it is true that Nifty's undertake illegal business dealings of importing and distributing illegal weapons, as revealed by Nifty to me, the partnership's lawyer. Since the government has suspected that Nifty's conducts illegal business, then the partnership are named in an investigation by the NSW Crime Commission to be investigated of illegal business. Therefore, once the police officers come to my office, I should fully disclose this confidential information for it puts my law firm under the risk of losing clientele and getting its reputation tarnished.

Under the ethics and professional codes of practice, the lawyer's duties of confidentiality are clearly outlined. The law requires that the contractual relationship between the customer and the lawyer would be governed by strict terms that govern the disclosure of confidential information to a third party [13]. The provisions of law require that all information about the affairs and businesses of the clients acquired in the course of professional relationship must be respected. The lawyer shall therefore not disclose such customer's information unless he obtains the client's consent on the same. Based on this case, I as the lawyer should only disclose any information regarding Nifty’s illegal transactions to the police and the Crime Commission only when and after obtaining the partnership’s consent [14].

The rules of professional conduct requires for justified disclosure of all material facts when a certain investigation and inspection is being carried out by government agencies over the transactions of a business [15].  Based on this case, the publishment of Nifty's as a suspect of a fraudulent dealer by the official governments Crime investigation body dictates that the lawyer has to disclose the client's confidential information to the police, but not more than it is required. It is the responsibility of the lawyer to obey and respect the rule of law especially when facing a more competent jurisdiction bestowed by the government of people, for the people, and by the nation [16]. Thus, I would only disclose less, and limited information regarding the business of Nifty's as revealing a lot or more than the required information is against the professional codes of law.

Losing His Long Term Client (Jack), and Other Potential Clients

Being knowledgeable of the law, a lawyer may act to disclose confidential information to the third parties when he believes their is a potential risk that may cause psychological dangers or professional risks to his work [17]. Since the police are investigating the business dealings of Nifty's, it would be risky when the lawyer resists to disclose this confidential information regarding the importation and distribution of illegal weapons by the client to the police since it may result in mental torture in the form of arrest, or even dismissal of professional licence by the government [18]. Thus, I would act responsibly and disclose any information deemed essential in the under judicial order by the police in my office where practicable but not disclosing more than the necessary information.

References

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Law Society of New South Wales v Lee [2005] NSWADT 242 at [12] (receiver appointed because of trust accounting irregularities).

Legal Practitioners Conduct Board v Kerin (2006) 246 LSJS 371; [2006] SASC 393; BC200610668 . See also Legal Profession Complaints Committee v Masten [2011] WASC 71 at [26]-[34] per Martin CJ, Murray and E M Heenan JJ

Mark, S. A., & Cowdroy, G. (2004). Incorporated Legal Practices-A New Era in the Provision of Legal Services in the State of New South Wales. Penn State International Law Review, 22, 671.

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Re Legal Practitioners Act 1898 to 1936 (CA(NSW), Gleeson CJ, Kirby P, Clarke JA, 11 May 1989, unreported, BC8902723).

Virginia Shirvington,  Professional Conduct and Advocacy. Avoiding a Breach of the Professional Conduct and Practice Rules. (https://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/026321.pdf).

Virginia Shirvington, Turning a blind eye: Professional Liability and responsibility. https://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/026322.pdf

Waikato/Bay of Plenty District Law Society v Harris [2006] 3 NZLR 755 at [194] per Chambers J (dissenting on this point).

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 285-6; [1957] ALR 620; BC5700380 per Dixon CJ; Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77 at 79; BC9303901 per Kirby P.