Barristers and Confidentiality
A. Bar Code of Conduct 1981, as Amended
Under the old Bar Code, barristers were required to ‘preserve the confidentiality of the lay client’s affairs’ and not reveal ‘the contents of the papers in any instructions’ or any other information entrusted to him without the prior consent of the lay client.167 They were not to use confidential client information ‘to the client’s detriment or to his own or another client’s advantage’.
No possible exceptions were mentioned. The refusal of instructions because of a ‘significant risk’ of a breach of client confidentiality was one of the exceptions to the cab rank rule.168B. The Code of Conduct of the Bar of England and Wales 2014
Core Duty 6 of the new Bar Code is that a barrister ‘must keep the affairs of each client confidential’. This obligation is said to be ‘central to the administration of justice’.169 The treatment of confidentiality in the new code is subject to disclosures ‘permitted or required by law or to which your client gives informed consent’, which would not amount to a breach of CD6.170 The treatment is slightly more extensive than it was in the previous code. It is more focused on advocacy than is the solicitors’ code. Barristers are reminded that the duty to the court, and the requirement not to mislead the court, does not mean that they should compromise confidentiality.171 There is also material on reconciling those duties in presenting cases to the court.172 Self-employed barristers must make proper arrangements for managing conflicts of interest and the confidentiality of clients’ affairs’.173
167 Bar Council, Bar Code of Conduct 1981, as amended, at para 702.
168 ibid, pt VI, para 603(f ), and see also para 608.
169 BSB, Handbook 2014, pt 2, The Code of Conduct, CD6.
170 ibid, r C15.5.
171 ibid, gC13.
172 ibid, guidance to C1. And see ch 19: ‘Advocacy’.
173 ibid, rC89.5.
The new Bar Code of Conduct also addresses potential problems caused by knowledge of past clients’ affairs. It provides that
[y]ou must not accept instructions to act in a particular matter if there is a real risk that information confidential to another former or existing client, or any other person to whom you owe duties of confidence, may be relevant to the matter, such that if obliged to maintain confidentiality, you could not act in the best interests of the prospective client, and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information.174
This rather wordy formula, which leaves it to a barrister to decide whether they can still represent a client, may not give past clients much comfort. The rule is more relaxed rule than that which applies to solicitors. This may be explained by the fact that barristers retain no document or formal record of previous clients’ matters. It may also be because barristers tend not to be involved in business negotiations between clients.
IX.