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Censure for breaching confidentiality

29 November 2019

[All names used in this article are fictitious]

A lawyer who breached her obligation of confidentiality has been censured and fined $2,500 by a lawyers standards committee.

The lawyer, Somerset, acted for Mr and Mrs Clywd before they both died.

When one of their daughters, Ms Surrey, saw Somerset about her parents’ estates, Ms Surrey asked Somerset to contact the estate’s solicitor to ask whether she was a beneficiary of a trust and about other issues relating to her parents’ will and her entitlement.

After meeting with Ms Surrey, Somerset realised that she had previously advised Ms Surrey’s parents. However, on the basis that Ms Surrey simply wanted Somerset to act as a conduit between herself and her siblings, Somerset did not consider she had a conflict that prevented her from acting for Ms Surrey at that stage.

Somerset subsequently emailed the estate’s solicitor asking if he was the lawyer for the estates of Mr and Mrs Clywd.

Following an email from Ms Surrey seeking advice on progress, Somerset spoke to the estate’s solicitor. After that conversation, Somerset advised Ms Surrey that she could not continue to act for her and that she should instruct an independent lawyer.

Four days later, another lawyer, Dundee, advised Somerset that he was now acting for Ms Surrey and asked for certain information.

Somerset emailed Dundee and provided information about the late Mr and Mrs Clywd and copied the estate’s solicitor into the email.

Another of the Clywd’s daughters then complained to the Lawyers Complaints Service about Somerset providing Dundee with confidential information, which was then passed on to her siblings.

In her response to the complaint, Somerset initially denied she had breached Mr and Mrs Clywd’s confidentiality. The denial was based on the fact that Ms Surrey was already aware of the information Somerset provided.

By the time of the standards committee hearing, Somerset acknowledged that she had breached her clients’ confidentiality, apologised for the breach and said she was, in providing the information, trying to be “transparent” with all parties.

The standards committee determined that the breach of confidentiality was unsatisfactory conduct.

“The obligation to keep clients’ information confidential is a strict obligation and must be taken very seriously,” the committee said.

“The obligation cannot be ignored or waived.

“A desire to be ‘transparent’ or helpful does not excuse a breach of the obligation. Nor can the obligation be ignored or excused when a lawyer believes that information is already known to the person the information is provided to.”

As well as the censure and fine, the committee ordered Somerset to pay $500 costs.

Last updated on the 29th November 2019