The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

Privilege & Confidentiality between Solicitor and Client and the Computer

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.

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.

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

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

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

Henry C P . Barry

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