Mon 11 Oct 2021

Client Confidentiality

Solicitors are trusted with confidential and privileged information and so it follows that client confidentiality is at the heart of what we do. Solicitors have a duty to maintain client confidentiality. That duty is not terminated by passage of time. 

However, the recent case of D v D [2021] CSOH 66 may have caused some confusion amongst agents about the extent of that duty.

In this case, both Senior Counsel and instructing agent (the Solicitor) gave evidence about the advice which they tendered to their former client (the pursuer in this action) The brief background is that in October 2020 parties reached an agreement in advance of a Proof (evidential hearing) diet. The agreement was set out in an email by the defender's Solicitor and acknowledged by the pursuer's Solicitor as accurately reflecting the agreement which had been reached. Subsequent thereto, the pursuer disengaged from her Solicitors and ultimately argued a valid and binding settlement had not been reached. A further Proof (evidential hearing) was assigned restricted to two matters: - (i) did the agreement in October 2020 constitute a valid and binding agreement between the parties; and (ii) if so, should that agreement nonetheless be set aside on the basis of unfairness or unreasonableness.

The pursuer appeared to accept that she had given instructions to her Solicitor to acknowledge that the email from the defender's Solicitor (dated October 2020) reflected the agreement that had been reached but that she had then left her Solicitor's office having signed nothing and given no further instructions. In short, her position appeared to be that the agreement was not binding or valid and even if it was, the agreement was not fair or reasonable (and should be set aside).

It is only as a consequence of the pursuer's position (that the agreement wasn't binding) as part of those proceedings that privilege was waived and it was waived by way of a finding made by the court.

Lord Arthuson (the judge) explains in his judgment that "at the pre-proof hearing on 26 April 2021 a finding had been made that privilege had been waived in respect of the communings [exchanges] related to settlement negotiation culminating on 6 October 2020 and the Court had ordered that the pursuer’s former legal representatives could competently give evidence on these matters whether or not the pursuer consented"

Whilst unusual, this case does not alter the position on confidentiality which is that unless waived by the court  (as was the case here) or the client, there will be few other occasions where privilege (client confidentiality)  can be waived.

The family law team at Morton Fraser MacRoberts is acutely aware that the information we are trusted with is amongst some of the most personal and sensitive, and clients can be assured that we fully understand and respect our duty of confidentiality.

 First published in The Scotsman

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