It’s not rocket science – it’s far more complicated than that!

 

I often tell people about the day I met a room full of rocket scientists.

They had just finished their degree at Queen Mary’s University, and there was a graduation ceremony, only none of the lecturers were able to give the speech.  I was told that they were all far too busy, but I did wonder if they were actually just a bit shy, so I was hired to do the job.  They prepared the speech (it was awful) and all I had to do was deliver it, drink champagne and eat cake.  And they paid me!

They were clearly a very impressive, bright bunch, and if I’d understood a word of what was in the speech, I’m sure that I’d have been suitably impressed.

Nevertheless, I think law is harder.  Not because it’s more complicated, but because it’s less certain.

Equations are equations.  Numbers either add up, or they don’t.  You might get the maths wrong, but if all the people checking the figures are suitably intelligent, they will all come out with the same answer.

Law, on the other hand, often doesn’t add up and different people can apply the same legal principals and come to a different but entirely logical conclusion – which is why we need the Court of Appeal and the Supreme Court!

Take, for example, legal privilege.  It’s a fairly well established and simple doctrine that provides that anything my client tells me, is confidential and cannot be revealed or disclosed to anyone else.   So my client is free to tell me anything that they like, and so long as they don’t then lie on the stand about something that they’ve told me, I never have to reveal it to anyone.  This enables me to give my client full and clear advice.

Sounds straight forward.

But it’s not.

There are circumstances in which, despite that doctrine, a court could (but won’t necessarily) order me to disclose my files to a third party.

In order for the court to make that order, the people wanting it have to know that I might have it, and will have to prove that I’ve got it and that in asking me to disclose it, it’s not breaching any other duties I may have or unfairly prejudice my client in a way that couldn’t have been anticipated.  Nevertheless, a court can override the duty of confidentiality that I owe to my client.

This has come out recently in a case involving an investment scheme which had gone wrong and is now in liquidation.  The liquidators applied to the court for an order that the company’s solicitors had to disclose their files and the court agreed.  It was found that the evidence of fraud was “impressive and compelling” which makes me wonder whether the law firm themselves will also be in the firing line.  It also increases the chances that the directors of the company could be facing criminal proceedings which might not otherwise have been the case if the solicitors’ files were not ordered to be delivered up.

So, the bottom line is that you can tell your solicitors anything you like, but there are circumstances in which those solicitors may be ordered by the court to share that information with others.  Which means if you are up to no good, don’t say anything to your solicitors that could incriminate you.  It also demonstrates that nothing in law is ever guaranteed!

Kleyman & Co Solicitors.  The full service law firm.  Rocking good legal advice.