CONFIDENTIALLY SPEAKING?

The priest who is entrusted with a secret and refuses to reveal it despite extreme pressure is a well-known figure.  But what is the position where information is imparted not to a priest but to a solicitor?  Can the person imparting the information expect absolute confidentiality?  If not, are there any circumstances in which the person imparting the information can be confident that it will be kept confidential to the recipient?

The general rule is that a solicitor has a duty of confidentiality to every client which obliges him to hold in strict confidence all information concerning the business affairs of his client acquired by him in the course of the professional relationship.  The duty is a strict one and the information may only be divulged with the client’s consent.  The solicitor may only breach his duty in exceptional circumstances where, for example, it is necessary to prevent the commission of a crime, or when required by the law.  The duty of confidentiality even survives the termination of the professional relationship and in this sense the solicitor, like the priest, carries his client’s confidences to the grave.

So far so good, but what is the position if the person imparts information to the solicitor before he has signed a retainer appointing the solicitor to act on his behalf?  In that situation he is not a client of the solicitor and no professional relationship yet exists.  Does the law offer any protection?

This question was first raised for consideration by the Hong Kong Court in 2003 in the case of Time Success Profits Ltd where the plaintiff sought to restrain the defendant, a firm of solicitors, from acting as solicitors for a party whom the same plaintiff was suing in a separate action.  In its action against the firm of solicitors, the plaintiff alleged that certain information had been given to one of the partners of the firm of solicitors during the course of an informal dinner party at which the defendant in the other action had also been present.  There was a dispute as to what precisely took place at the dinner party.

The plaintiff’s case was founded on an alleged breach of duty of confidence by the defendant firm of solicitors owed to them as their “quasi-solicitor”.  This was based on an English decision in 1992 when it was held that a relationship of “quasi-solicitor” may arise where a person imparts detailed information to a solicitor if the circumstance are such that the person may be considered to be an informal client of the solicitor.  If the relationship of “quasi-solicitor” is established, the solicitor will then be held to owe to that person very similar duties to those which he would have owed had that person signed a retainer and been a client in the strict sense.  Thus, the duty of confidence also survives the termination of the “quasi-solicitor” relationship and a former client may be able to restrain the “quasi-solicitor”  from acting for another client with an interest adverse to his own if he can establish that the “quasi-solicitor” is in possession of confidential information which is or may be relevant to the new matter.  In Time Success Profits Ltd, the Judge granted the plaintiff an injunction against the defendant firm of solicitors preventing them from  acting in the other matter.

Recently, these principles were reconsidered by the same Judge in the case of Allan v Erving.  In this case, the circumstances were quite different.  The claim revolved around a telephone conversation which the plaintiff’s sister had with the solicitor during which she imparted information to the solicitor relevant to her brother’s divorce.  No retainer was signed and a few weeks later, the solicitor appeared on the record in the divorce proceedings representing the plaintiff’s wife!  The plaintiff failed to get an injunction to prevent the solicitor from acting, but proceeded with his claim for damages.  The Judge held that the nature of the information imparted to the solicitor was confidential, that there had been a breach of confidence by the solicitor and that the conduct of the solicitor was such as to justify an award of exemplary damages.  The solicitor has appealed the decision.

It is probably expecting too much that all solicitors should behave like priests.  Some protection is afforded by the above decisions, but the safer course is to sign a retainer with the solicitor before sharing confidences, just in case.

Martin Waldron
Partner
Hampton, Winter and Glynn
June 2011