In a new monthly column, our expert in law answers readers’ queries on all matters legal. This week, themes include attorney/client confidentiality
April 22, 2009 17:51By
Jonathan Goldberg
The theme of many questions this week concerns attorney/client confidentiality.
● For example, Sandra of Hampstead writes: “I am contemplating divorce. I have discovered that my husband, whom I believed to be a property manager, is in fact operating a sauna establishment. My concern is, if I go to a divorce solicitor, how can I be sure he will not gossip to colleagues, wife or friends, which would be ruinous to myself and my children?”
The principle of total confidentiality (called privilege) between a solicitor or barrister and his/her client dates back to Elizabethan times and is sacrosanct to the legal profession.
Not unlike a physician who takes the Hippocratic oath “to do no harm”, we follow a code of ethics, the cornerstone of which is confidentiality. At all times we must be loyal to our client and we can never divulge what we have learned.
The principle is that any client must be able to consult a lawyer in total confidence as otherwise he might hold back half the truth. Once privilege is established, “the lawyer’s mouth is shut forever”, as was stated in a case in 1782, which is still cited. Beware of one exception however. This principle does not apply if the client is in fact seeking advice from the lawyer on how best to commit a crime or fraud.
Let us now turn to the realities of life. Yes, we do protect our client’s confidentiality. However, there are instances of loose lips. Generally, if a lawyer does talk about a case to a spouse or colleague he will hide the identity, perhaps by changing the names or facts.
Let me offer some practical advice. Do not use your local or family solicitor. Go to a complete stranger, one whose speciality is matrimonial law. With the internet, this is easy to find.
Many women are more comfortable with a female solicitor, but that is a personal decision. Be sure — at the very first meeting with your solicitor — to tell her that you demand this issue be handled with the utmost confidentiality and that you do not want matters discussed with another soul without your express consent.
Do not bring anyone else to this meeting. If you are in the solicitor’s room and there are files on the desk with the names of her other clients visible, leave!
● Rachel from Edgware writes: “When our elderly father dies, my brother and I stand to inherit his considerable estate. My brother is an executor of his will but I am not, and I fear he will not play fair with me. He is having business problems and I just discovered he has mortgaged one of my father’s properties using the power of attorney given to him by my father. How can I safeguard my own future without an acrimonious split with my brother?”
The answer to this question has as much to do with interpersonal relationships as it does with law. First, your brother has probably committed a crime by abusing the power of attorney to his own advantage. If he has done this once, you have every right to fear he may do it again.
Let me be blunt. You should arrange a private meeting with your brother, just the two of you, with no spouses or boyfriends present. You need to demand a full explanation. Tell him you are considering complaining to your father but have not yet done so, nor have you yet called a solicitor because of family loyalty. Insist that he goes with you to your father with a jointly agreed proposal that you should from now on have a joint power of attorney and that your father should change the will to appoint you also as executor.
If this fails, I fear you will have no option but to consult a solicitor. He will write formally to your brother and he may even warn him of a possible complaint to the police. Let’s hope your brother reads this column and realises the error of his ways first.
● Gary from Stanmore writes: “I am the senior audit partner for a large accountancy firm and I have just been summoned for jury service at Southwark Crown Court where I understand big fraud trials are heard which can last many months or more. This would cause havoc at my office. Can I claim exemption either because I have specialist accountancy knowledge or due to the enormous inconvenience?”
I am sorry to tell you that jury service is considered a fundamental duty which all citizens are expected to honour, and you have no right to exemption. Moreover, you cannot claim more than a daily allowance of about £61 currently, despite your obvious loss of earnings. Equally, however, an employer is not allowed to penalise you — let alone fire you — because of it. Recent changes in the law have positively forced well-educated professionals to sit on juries. Indeed the only category of persons who now enjoy exemption are ex-prisoners. Occasionally, and on a strictly one–off basis, the judge has a discretion to excuse a juror at the moment he/she is asked to take the oath, for wholly exceptional reasons. Examples might include illness, pregnancy, young children to look after or a pre-paid holiday. Thus you may raise with the judge the havoc at your office but if there is any reasonable prospect of your partners stepping into the breach, he is unlikely to be sympathetic. However, I can promise you that jury service is a genuinely fascinating experience. One Recorder, who is my friend, recently had the ordeal of summing up a burglary case to the jury of which a Lord Justice of Appeal was a member — so you may find yourself in good company!
The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. All questions will be treated anonymously and all names changed.
Jonathan Goldberg QC is a leading lawyer practising at Ely Place Chambers in London