Confidentiality and conflicts Flashcards
(20 cards)
Barristers have an obligation to not disclose confidential information. What ethical rule deals with this? and what are the exceptions?
r 108 - A barrister must not disclose (unless compelled by law) or use confidential information obtained by the barrister in the course of the practice concerning any person whom the barrister owes a duty of confidentiality unless…
(a) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or
(b) the person who is owed the confidentiality consents; or
(c) barrister discloses it in a confidential setting for the sole purpose of obtaining advice about barristers legal or ethical advice about.
Barrister can disclose confidential information where consent is provided. What is the disclosure limited by and what rule deals with this?
r 109 - disclosure or use must be within the scope of consent
There are limited circumstances where a barrister can communicate confidential information without the client’s consent (or the consent of the person which confidentiality is owed). What rule/s deals with that?
Hint two rules
r 110 - a barrister will not have breached r 108- 109 by communicating information to a member of the barrister’s staff for the purposes of that person undertaking clerical or administrative work in relation to the matter, or to a reader or to another barrister doing work as permitted by Rule 107.
Where a barrister has given another barrister (reader) work under a devilling arrangement…is the reader under the same confidentiality obligations? If so, what rule provides for this?
r 111 - yes - A barrister who is shown a brief as a reader or under an arrangement covered by Rule
107 is bound by the same duties of confidentiality which bind the barrister whose brief
it is, including the duties imposed by Rule 108 and 109.
Where has accepted a brief and it becomes apparent the barrister has information confidential to a person other than client which is material to the client’s case or the advancement of the client’s interest what must the barrister do ?
r 112 barrister must return the brief unless the person who is owed the duty of confidentiality consents to the use of that information.
Where a barrister is briefed to appear for two or more parties…the barrister must do what?
r 113 the barrister must determine whether the interests of the clients may conflict and if so must then return the brief for all the clients in the case of confidentiality to which rule 108-109 applies or one or more clients to remove the possibility of conflict…
Where a barrister believes on reasonable grounds that the client may conflict with the interest s of the instructing solicitor or that the client may have a claim against the instructing solicitor the barrister must do what?
r 114 must advise the instructing solicitor of the barristers belief and if the instructing solicitor does not agree to advise the client of the barristers belief, seek to advise the client in the presence of the instructing solicitor of the barristers belief.
What is r 108? (hint confidentiality and conflicts)
- A barrister must not disclose (except as compelled by law) or use in any way
confidential information obtained by the barrister in the course of practice concerning
any person to whom the barrister owes some duty or obligation to keep such
information confidential unless or until:
(a) the information is later obtained by the barrister from another person who is
not bound by the confidentiality owed by the barrister to the first person and
who does not give the information confidentially to the barrister; or
(b) the person has consented to the barrister disclosing or using the information
generally or on specific terms; or
(c) the barrister discloses the information in a confidential setting, for the sole
purpose of obtaining advice in connection with the barrister’s legal or ethical
obligations.
What is r 109? (hint confidentiality and conflicts)
- A barrister must not disclose (except as compelled by law) or use confidential
information under Rule 108(b) in any way other than as permitted by the specific terms
of the person’s consen
What is r 110? (hint confidentiality and conflicts)
- A barrister will not have breached Rules 108 and 109 simply by showing briefs to or
disclosing information contained in a brief to the barrister’s instructing solicitor in the
matter, to a member of the barrister’s staff for the purposes of that person undertaking
clerical or administrative work in relation to the matter, or to a reader or to another
barrister doing work as permitted by Rule 107.
What is r 111? (hint confidentiality and conflicts)
- A barrister who is shown a brief as a reader or under an arrangement covered by Rule
107 is bound by the same duties of confidentiality which bind the barrister whose brief
it is, including the duties imposed by Rule 108 and 109.
What is r 112? (hint confidentiality and conflicts)
- A barrister must return a brief other than a brief to appear as soon as possible after the
barrister becomes aware that the barrister has information confidential to a person
other than the client which may, as a real possibility, be material to the client’s case or
to the advancement of the client’s interests, being information which the barrister is
prohibited from disclosing or using unless the person entitled to the confidentiality
consents to the barrister disclosing or using the information as the barrister thinks fit
What is r 113? (hint confidentiality and conflicts)
- A barrister who is briefed to appear for two or more parties in any case must determine
as soon as possible whether the interests of the clients may, as a real possibility,
conflict and, if so, the barrister must then return the brief for:
(a) all the clients in the case of confidentiality to which Rule 108 would apply; or
(b) one or more of the clients so as to remove that possibility of conflict
What is r 114? (hint confidentiality and conflicts)
- A barrister who believes on reasonable grounds that the interests of the client may
conflict with the interests of the instructing solicitor, or that the client may have a claim
against the instructing solicitor, must:
(a) advise the instructing solicitor of the barrister’s belief; and
(b) if the instructing solicitor does not agree to advise the client of the barrister’s
belief, seek to advise the client in the presence of the instructing solicitor of
the barrister’s belief.
Discuss - Hearn v Street;Tri-star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136; Mobile oil v Guina
- Hearn v Street - A party who receives compelled disclosure from the other party is under the implied obligation to only use that information for the purpose of securing justice in the litigation…this protects the disclosing party from suffering any harsher consequences other than invasion of privacy…
- Exceptional circumstances may require the receiving party to provide an express undertaking to provide the disclosing party more protection for example where rivals are required to disclose trade secrets (Mobile Oil v Guina)
- Tristar - Whether the particular case requires more than the implied obligation…the court will determine where to strike the balance between the competing interest…i.e. between a parties confidentiality concerns and the needs of the other litigant to have access to the documents concerned…
- …an express undertaking brings home the importance of confidentiality and the obligations regarding their use.
- Expressed undertaking can have conditions such as restricting access to documents to certain persons i.e. lawyers or requiring viewings
Your instructing solicitor explains that he has just received compelled disclosure of from the other side. He explains that the information reveals some really interesting insight into how the company operates which his client would love to know about as it would give them a competitive advantage and further reveals a a new cause of action which the instructing solicitor wants to amend the claim and statement of claim to add on.
The IS asks whether he can do this?
No - I would explain that that given the other party has provided compelled disclosure which means him as the rececing party has given the an implied undertaking/harman undertaking to the court to only use that information in way connected with the proceeding for the purpose which it was disclosed.
The rationale of the rule is to ensure the privacy and confidential of the party is not invaded any more than necessary in the interests of justice.
The material can only be used where it has been tendered into evidence which is open court or the party makes an application to the court court…
The failure to comply with the implied undertaking to the court is contempt of court, possible action in tort for damages, referral to lsc, and the court may strike out any proceeding which is founded on the material subject to the undertaking.
You are brief by Green Food Company Pty Ltd in a commercial dispute with Red Food Company Ltd. The IS has explained the court has made an order that the client disclose the clients internal documents which reveal trade secrets regarding the method of saving costs when stocking shelves. The client has explained that he does not want to comply because he simply cant take their word that they wont use it to their advantage.
What do you tell the IS?
I would explain to the IS we must comply with the court order, however the other party is subject to an implied/harman undertaking to the court to only use the information obtained for the purpose it was disclosed and not for any collateral purpose. such as improving their own processes.
We can make an application to the court for the other party to provide an express undertaking regarding the use of the information as this would reinforce the importance not misusing the information, however this will only be granted in exceptional circumstances where the court upon balancing the interests of the parties is satisfied that the implied undertaking is not sufficient protection which can happen where trade secrets are being disclosed (mobile oil aus)….can impose conditions in which the information is viewed and who views it….the consequences of the other party not complying is contempt pf court proceedings, potential tort liability, and referral to LSC.
Explain what you know about the implied undertaking/Harman undertaking
Where a party is compelled by court order to disclose information or documents the receiving party provides an implied/harman undertaking to the court to only use the information for the purpose of which it was disclosed and must not use for any collateral purpose…unless the information is tendered in open court or the court provides leave
the rationale of the rule is that parties privacy or confidence should not be invaded any more than necessary to achieve justice
where there is non compliance with the rule this may result in contempt proceedings, the court inherent jurisdcition awarding damages, action in tort, and referral to lsc.
a party may apply to the court for an expressed undertaking for the purposes of reenforcing the importance of not misusing the information…however the court will only does this where there are exceptional circumstances where an implied undertaking does not provide sufficient protection which can include where trade secrets are not disclosed (mobile oil) te court will weigh up the competing interests of the pparty who needs protectio and the party who needs the disclose to achieve justice.
What is the implied undertaking/harman undertaking…in one sentence?
Where a party is compelled to provide disclosure by court order the receiving party provides the court an implied undertaking to only use the information for the purpose which is was disclosed and not for any collateral purpose.
Your instructing solicitor explains that as a result of a disclosure order…the other sides documents incidentially reveal that one of the parties was dealt with for sexual misconduct internally.
The client has asked whether we can give this information to the media…which would generate embarrassment for the other side and may force them to come to a compromise. The proceedings relate to copyright infringement and have nothing to do sexual misconduct….further the documents also have revealed information which provides a basis for a claim against another party albeit for a different cause of action.
the solicitor says that all is fair in love and war…what do you advise?
I would advise that this is not permitted because the client provided an implied undertaking to the court to only use compelled disclosure for the purposes of which it was provided and not for any collateral purpose which includes media punlication and commencing new proceedings or amending proceedings based on the information…unless the evidence was read in open court making it public information and/or with leave of the court….the ratioanle of the undertaking is to prevent a parties priacy, interstes, and confidentialty from not being invvaded more than necessary for the interets of justice
the consequences of in breaching the under taking may be contempt of court, courts inherent power to award damages, referral to lsc, and proceedings being struck out if based on information subject to the undertaking.
