Could the rise in information-sharing agreements forcing the breach of confidential agreements lead practitioners down a dangerous path, asks Simon Leney

Arecent press report read  “Landmark information sharing agreement between banks and National Crime Agency: 10 of Britain’s biggest banks will voluntarily hand over details of the accounts of people suspected of money laundering and other serious offences.”

And in the Law Society Gazette, Nigel Kirby of the National Crime Agency is reported to have said: “Shut the door on suspicious activity… It only takes a handful [of solicitors] who aren’t trustworthy to taint the whole profession.”

Now, I have no time for criminals, but I feel a pang of anxiety about the ‘end justifying the means’ argument, which allows a government agency to require breach of confidentiality obligations. Where does it stop? Those who have promulgated the concept that banks and professionals should be whistleblowers intend that such powers will be used for good, but it’s a slippery slope.  

What, you might ask, does this have to do with private client law? The answer is that the concept of legal privilege has long been something which accountancy bodies have criticised, wanting solicitors to be on the same level as their members (something which HM Revenue & Customs would probably like too). The right to confidentiality is enshrined in data protection law and in our professional rules; the risk is that ‘suspicion’ without judicial examination will justify an obligation to disclose information on demand, and thus another individual right bites the dust for the greater good.

Another article in the Gazette recently summarised the writer’s negative experience in respect of his solicitor’s handling of his father’s estate. He described it as a way of practice which could not hope to survive and said that web-based legal service delivery will take over from the more traditional consultancy-based methodology. The problem appears to have been a failure to communicate, rather than technical incompetence, and eventually his concerns were addressed by the bill being halved.

This failure to communicate criticism is not new. For some time in the 1980s, I had management responsibility for the whole of a firm’s private client practice, and my residential conveyancing colleagues often complained of being distracted by clients (and agents) ringing to ask “what’s happening?” It took some time and persuasion to get them to recognise that they needed to resolve the problem, rather than blame the callers, and that those calls would continue until a proactive system of communication was developed and observed. Can you honestly say that you have such a system in place? In those days, of course, the solution was less electronic, but the introduction of a protocol which generated a pro forma report on a fortnightly basis, whether or not there was progress to report, cut the distraction calls substantially.    

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