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LAWYER-CLIENT RELATIONSHIPS: CONFIDENTIALITY AND LEGAL PRIVILIGE…
LAWYER-CLIENT RELATIONSHIPS: CONFIDENTIALITY AND LEGAL PRIVILIGE
PROFESSIONAL ETHICS
CLIENTS INTERETS SHOULD TAKE PRECEDENCE OVER THOSE OF A LAWYERS.
LOTS OF DIFFERENT WAY AND VIEWS
PARTICIPATORY APPROACH - IS CLIENT-CENTERED AND A REGULAR AND MUTUAL PARTICIPATION BETWEEN LAWYER AND CLIENT.
PATERNALISTIC VIEW: INVOLVES ONE PERSON MAKING A DECISION FOR SOMEONE ELSE BASED ON WHAT THE LAWYER THINKS IS THE BEST DECISION FOR THE CLIENT.
AUTONOMY: ALLOWS PEOPLE TO MAKE THEIR OWN DECISION AND BE FREE TO CARRY THEM OUT. THE LAWYER WILL GIVE THE CLIENT THE NECESSARY INFORMATION AND HE CAN MAKE HIS DECISION.
CAN BE HARD TO PROVIDE ALL THE LEGAL INFORMATION TO THE CLIENT-MOST WANT ADVICE NOT ALL THE INFORMATION.
MODELS OF LAWYER CLIENT RELATIONSHIPS
AGENCY
THE LAWYERS IS THE AGENT AND THE CLIENT IS THE PRINCIPAL
JOB OF THE LAWYER IS TO CARRY OUT WHAT THE PRINCIPAL WANTS. NOT TO CHALLENGE OR IGNORE REQUESTS.
LAWYERS SHOULD NOT IMPOSE MORAL VALUES ON THIS MATTER AND NOT THEIR JOB TO JUDGE BUT DEFER CLIENTS JUDGEMENT
CONTRACTUAL RELATIONSHIP
DEFINED BY TERMS OF CONTRACT BETWEEN PARTIES
CANNOT DEPEND MUCH ON RELATIONSHIP AS ALL DEPENDS ON WHAT THE PARTIES HAVE AGREED ON.
FIDUCIARY MODEL
HAS SPECIAL LEGAL OBLIGATIONS TO LOOK AFTER THE CLIENT.
MUST TAKE SPECIAL CARE TO ENSURE NO ADVANTAGE IS TAKEN
CRITICS SAY THIS MODEL PROMOTES A PATERNALISTIC MODEL
CONFIDENTIALITY
CLIENT HAS RIGHT OF PRIVACY AND CAN NOW BE SEEN AS A FUNDAMENTAL HUMAN RIGHT
LAWYERS HAVE A SPECIAL OBLIGATION IN THEIR POSITION AND CLIENTS TRUST THEM AND THIS CAN BE SEEN AS A CENTRAL PILLAR OF LEGAL ETHICS
IS AN IMPLIED TERM IN A CONTRACT BETWEEN A LAWYER AND A CLIENT
INFORMATION GIVEN TO THE LAWYER CAN BE TREATED AS PROPERTY THAT THE LAWYER GOT AS A FIDUCIARY THUS HE MUST REPORT ANY GAINS HE HAS MADE FROM THIS INFORMATION
THERE IS A PUBLIC INTEREST IN ENSURING THAT DISCUSSIONS BETWEEN CLIENTS AND LAWYERS ARE KEPT CONFIDENTIAL.
LEGAL PRIVILIGE
CLIENT WILL RELY ON LEGAL PRIVILEGE IF HE OR SHE HAS BEEN ASKED TO HAND OVER INFORMATION BUT DOES NOT WANT TO DO SO AND IT IS COVERED BY THE PRIVILEGE
HOWEVER, PRIVILEGE ONLY APPLIES TO DOCUMENTS FOR LITIGATION - THREE RIVERS DISTRICT COUNCIL v BANK OF ENGLAND
IF SOMETHING IS A PRIVILEGE YOU CANNOT DISCLOSE IT EVEN TO THE COURTS- THIS IS THE DIFFERENCE FROM CONFIDENTIALITY
EXCEPTIONS
CONSENT/WAIVER
CLIENT CAN GIVE CONSENT TO THE DISCLOSURE OR WAIVE THEIR RIGHTS.
CHILDREN ACT 1989
RE L (POLICE INVESTIGATION) WELFARE OF CHILD AS 'PARAMOUNT'
CRIMINAL ACTIVITY
CRIMINAL COMMUNICATIONS NOT A PART OF GIVING LEGAL ADVICE RE MCE
PUBLIC INTEREST
MUST WEIGH UP INTEREST IN MAINTAINING CONFIDENCE AND INTEREST IN DISCLOSING (ATTORNEY GENERAL V GUARDIAN NEWSPAPERS)
STATUTE
OCCASIONALLY A STATUTE WILL PERMIT A BREACH
PACE 1984, MONEY LAUNDERING
MEDIATION
PARTIES CAN DISCUSS BEFOREHAND AND BE PROTECTED FROM CONFIDENTIALITY, NOT LEGAL PRIVILIGE
DUTY TO THE COURT TO NOT MISLEAD
MUST CONNECT THE EXCEPTIONS TO LEAGL ETHICS!!!
CONFLICTS OF INTEREST
OWN INTERETS CONFLICTS
CLIENT CONFLICT
REAL RULES FOR BOTH ARE ALL ABOUT AVOIDANCE!!!!