Introduction

Professionals generally promise to respect client confidences. The law also respects communications between lawyers and their clients as privileged. This means that lawyers cannot be forced to reveal client confidences, nor can privileged information be produced in court.

A right to confidence is also potentially harmful to society. It is an obligation that may implicate lawyers in harm to others. Lawyers may have been given informa­tion that could avert harm. They may suspect, for example, that a client intends to intimidate a witness. Most jurisdictions allow lawyers to breach confidence in order to prevent harm, but only in limited circumstances, usually related to preventing future harm. They must usually respect confidences where no harm is imminent. For example, a lawyer who has been told by a murderer what they did with the victim’s body must respect that confidence.

Increased sensitivity about the risk of social harm has caused government to encroach on the principles of client confidentiality. Therefore, the state may require

¹ Three Rivers District Council & Others v Governor and Company of the Bank of England (No 6) [2004] 3 All ER 168 (CA) and [2005] 1 AC 610, per (HL) Baroness Hale at [62]. professionals to breach confidences where protection would be particularly harmful to society. Examples include money laundering and serious crime. Because of the importance of the principle of confidentiality, the circumstances for such disclosures must be carefully defined. A separate but related issue is the extent to which privilege should be recognised where some kind of harm may result.

II.