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GAZETTE
JANUARY/FEBRUARY 1991
Privilege & Confidentiality between
Solicitor and Client and the Computer
A solicitor has a contractual duty not to disclose, or make use of,
confidential information communicated to him by his clients (or
by third parties at the instance of his clients), for the purpose of
enabling him to deal w i t h his client's affairs.
The general principle is that
privilege extends to oral or
documentary communications
passing between a solicitor and his
client. [See Chapter 3, paragraph
3.2 A Guide To Professional
Conduct Of Solicitors In Ireland
("the Guide") and Cordery On
Solicitors ("Cordery")]. Privilege
may be lost by inadvertence or
waiver (par. 3.5 The Guide) We
need not be concerned with the
exceptions to privilege here.
The duty of the solicitor to
respect the confidence of a client
and protect the client privilege
extends to the solicitor's staff.
According to the Guide "Staff
should be told of their responsibility
to refrain from disclosing to any
unauthorised party anything they
learn in the course of their em-
ployment. This duty imposed on
each member of the Staff of a
solicitor is not terminated by: —
(a) the determination of the
retainer of the solicitor by
the client, or
(b) the end of the matter in
question, or
(c) the termination of the
employment of a member of
such Staff"
According to Cordery failure to
exercise supervision (over an
employee) may amount to pro-
fessional misconduct on the part of
the solicitor. Members of staff owe
their employers a contractual duty
of care in the performance of their
duties but it has been held, on the
ground of privity of contract, that
an employee is not accountable to
the client for money received on
the employer's behalf. On the other
hand, the solicitor, since he is the
solicitor who has been retained, is
responsible for the negligence of an
employee where the act is within
the scope of the employee's
authority, but not otherwise. So,
according to Cordery, he may be
civilly responsible for the fraud or
even for the criminal conduct of the
employee in the usual course of his
employment. The nature of a
solicitor's business is such as to
enable an employee to acquire
confidential information concern-
ing, and personal influence over,
the solicitor's clients and a
covenant directed against ad-
vantage being taken of such
information and influence can
by
Henry C. P. Barry
Solicitor
validly be included in the
EmpJoyee's Service Contract.
According to the Code of
Conduct for Lawyers in the
European Community unanimously
adopted by the 12 national delega-
tions representing the Bars and Law
Societies of the European Com-
munity, at the CCBE Plenary
Session in Strasbourg on 28
October 1988 :-
"Confidentiality
It is of the essence of a lawyer's
function that he should be told by
his client things which the client
would not tell to others, and that he
should be the recipient of other
information on a basis of confi-
dence. Without the certainty of
confidentiality there cannot be
trust. Confidentiality is therefore a
primary and fundamental right and
duty of the lawyer.
A lawyer shall accordingly res-
pect the confidentiality of all
information given to him by his
client, or received by him about his
client or others in the course of
rendering services to this client.
The obligation of confidentiality
is not limited in time".
A lawyer should require his
associates and staff and anyone
engaged by him in the course of
providing professional services to
observe the same obligation of
confidentiality.
Many Solicitors now have con-
fidential information and data
relating to their own and their
clients' affairs stored on computer
hard disk and with backup copies
on floppy disks etc. or other disks.
Software and hardware main-
tenance contracts are entered into
by solicitors with either the com-
pany who installed the hardware, or
software and/or with other com-
panies specialising in computer
maintenance. Maintenance is either
performed on site or on-line using
computer diagnostics by the
company's engineer or mechanic.
All that is needed for one computer
to communicate with another is a
device called a modem, suitable
communications software, and a
telephone line.
Henry C P . Barry
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