Overview of Advantages and Disadvantages of Confidentiality

The protection of a client’s confidentiality has become a fundamental part of the legal profession and is considered such a key element to a successful and fair legal representation that it would require the most extraordinary circumstances to allow a lawyer to bypass this. While confidentiality is important and a great concept, in theory, it is not without its issues and limitations, with some arguing that it doesn’t work as well as it should and others arguing that it works too well and has been taken too far to still be considered a benefit to the pursuit for justice within the legal system. In order to determine whether confidentiality is advantage or weakness of the United Kingdom’s justice system, it is important to explore what confidentiality means within the UK and the arguments within each different perspective.

Within the legal system of the United Kingdom, there are two ways in which a client’s information can be protected. The first is the doctrine of confidentiality, which protects any and all communication between a lawyer and their client unless the client waives their right to this privilege, or there is an extraordinary circumstance which allows the lawyer to bypass this privilege. A lawyer has a responsibility not to mislead the court, but confidentiality does mean that a client can be completely honest and the lawyer can then pick and choose what to include within their legal arguments in order to get the best outcome for their client. The second mechanism is Legal Professional Privilege. If a client or solicitor has been asked to hand over any information that has been shared within their legal advice proceedings then they can refuse to, as it is legally protected by their privilege.

Within the context of the legal profession, there is an ongoing debate as to the effectiveness of the doctrine of confidentiality. Many see it as a vital part of a successful legal system because it promotes the importance of a client’s right to privacy as well as their right to fair legal representation. In the case of Three Rivers (No 6), Lord Scott argued the importance of equal access to proper legal representation. In the same speech, he also argued how important this right was to the public interest, as client’s that feel protected by confidentiality are more likely to be honest with their lawyers, which means that the lawyers can provide them with better legal representation, which creates a better system for seeking justice. A similar argument was made by Lord Millett in Bolkiah v KPMG: he argued that it was in the greater interest of society that everyone has access to the best possible legal advice and that the protection of a client’s confidentiality is fundamental to that idea.

There are, however, many that have argued that confidentiality is a negative part of our legal system or that it has gone too far. For example, Stevenson argued that “far more evils result from secrecy than from transparency,” and that the rules of confidentiality are protecting too many criminals, eroding the equality and effectiveness of our judicial system and letting lawyers get away with keeping secrets that allow wrongful convictions and ruin lives. For example, State v Macumber, in which the court did not allow testimony from two lawyers who’s deceased client had confessed to the murder which Macumber was being charged with; the court ruled the information privileged and therefore inadmissible. Despite being an American case, this is a demonstration of where confidentiality seems to not work so well in practice. Another argument against confidentiality is the unfair advantage that it gives to law firms. For example, in Prudential, a firm of accountants were asked to give legal advice to their clients on a tax matter and tried to use legal advice privilege to prevent them from having to share details. However, the Supreme Court ruled that this has always only applied to lawyers, so to change this now would cause too much of an imbalance within the legal profession. But arguably this is unfair because a client is more likely to seek advice from a law firm so that their information is protected, which provides a disadvantage to accountancy firms that can provide the same advice.

In order to take confidentiality from an idea to a legally required reality, systems had to be put into place to protect it. Within the legislation and regulatory legal handbooks of the United Kingdom, there are rules written out and explained in order to make them easy to follow and understand; the BSB Handbook and SRA Code of Conduct provide regulations for confidentiality. Also, law firms have compliance checks and contracts in place to ensure confidentiality. Many firms use Lexcel accreditation to demonstrate the quality of their business, and in order to obtain this they have to go through checks, and one of these essential checks is confidentiality. With these systems in place, confidentiality can work well in practice.

An issue that law firms face now that they didn’t fifty years ago is the fact that a great deal of sensitive information is now shared over emails. Despite cybersecurity, there is always the risk of a hacker getting into a law firm’s system and obtaining confidential information including emails and any documents that are backed up to an online server. While these back-ups are great for the protection of hard work, it is exactly the opposite for the protection of confidential information, because an online server is much more hackable than a physical hard drive. This is a huge obstacle to the effective practice of confidentiality in contemporary law firms. There is also an increasing casualness amongst lawyers, who may divulge confidential information to friends or family. A key example of this was when J. K. Rowling released a book under a pseudonym, and her identity was exposed thanks to one of her lawyer’s telling his wife’s friend in a ‘private conversation’, who then passed on the information to a journalist. This undermines the working of confidentiality in modern firms.

A modern issue with confidentiality is the schemes that have had to be put in place during the coronavirus pandemic. Law firms were legally obliged by government advice to close their offices, so lawyers have had to work from home to keep their businesses running. Within the space of a legal office, measurements can be put in place to provide protection of confidentiality, that are all largely impossible when working from home. It is up to the individual lawyer to protect their client’s confidentiality when they are working from home, not only from the prying eyes (and ears) of their family members but also from hackers, as personal cybersecurity systems are often so much more accessible to hackers than the systems of large law firms. This has provided a brand-new challenge for law firms and resulted in the need for fresh risk assessments and new guidance. This is a brand-new obstacle for the effective work of confidentiality practice within contemporary law firms.

In conclusion, there are very strong arguments on both sides as to whether confidentiality is a good thing. On the one hand, it is important because it protects the interests of the public and the client if they are able to tell their lawyer the whole truth without fear of the information being shared, as this allows proper legal representation. However, there is the argument that confidentiality provides too much protection, both to clients and lawyers. But there has been no strong demonstration of how the judicial system could function without confidentiality, and there is a great chance that without it, the system would fall apart. Within contemporary firms, confidentiality does often work in practice, thanks to the legislation and guidance that has been put in place by regulatory bodies as well as the steps taken by law firms themselves. However, there are definitely limits and issues that threaten the fundamentals of confidentiality, such as how lawyers communicate in a modern context over the internet, all files being uploaded to a cloud-based system and the ‘chattiness’ of lawyers. In summary, confidentiality is a good idea in theory and has been shown to work well in practice within contemporary law firms, but it is not without its issues and there are changes that could be made, such as allowing solicitors to waive confidentiality when it could save somebody from a wrongful conviction, in order to refocus the whole point of confidentiality: the seeking of justice.