What’s wrong with legal regulator guidance on confidential information
Professor Richard Moorhead, Graeme Johnston, and I have submitted a paper to the solicitors’ regulator, the SRA, calling for improved guidance on when and how lawyers can and should internally and externally report or disclose wrongdoing by their clients.
The current SRA guidance on confidentiality and legal privilege is legally deficient, lacks clarity, and fails to deal with a number of relevant issues germane to practice, and this has an impact on whether and the pace at which issues are correctly dealt with within corporations and institutions.
The paper calls for updated guidance and wider support from the professional regulators to:
cover critical issues on advising independently and objectively
be clear who the client is including, in employer-client relationships
support reporting up within the client and, occasionally, reporting out in ways which properly balance professional obligations to uphold the rule of law and the best interests of the client.
Jenifer Swallow said:
“Client confidentiality is, rightly, a core principle of legal practice. However, misconceptions around it abound and it can be misused. Clarity is needed. This is something on which the SRA and other legal services regulators can lead, in the interests of supporting the efficacy, tenor and pace at which issues and wrongdoing inside organisations are alerted and addressed."
Richard Moorhead said:
“We can point to a number of serious scandals where wrongdoing by a client is ignored or finessed away by their lawyers rather than being properly dealt by the proper decision-making bodies of those organisations. The SRA can better support lawyers in some of the trickiest dilemmas of their professional lives by providing clearer guidance which deals not only with the nuclear option of disclosure of wrongdoing but how to manage the process of reporting up within organisations. Having discussed key examples with many lawyers, I am convinced that better more commercially focused guidance here would help. And new guidance would enable the SRA to work with practice to lead a debate on a crucial governance issue”
Graeme Johnston said:
"The current SRA guidance doesn't adequately articulate the circumstances in which lawyers may or must report concerns. It significantly misstates the law on some important points. It also tends to minimise the situations in which reporting is appropriate."
You can read the full paper here.