New Zealand Law Society - Consider confidentiality when storing documents as precedents

Consider confidentiality when storing documents as precedents

Published on 4 October 2019

[All names used in this article are fictitious]

Some lawyers may not be giving “adequate consideration to their obligations of confidentiality in the retention and storage of documents for use as precedents,” a lawyers standards committee has said.

“Best practice would be that client information is accessed only by those who are involved in a matter and best practice was to remove all identifying information from any documents before they were stored for use as precedents and/or circulated for this purpose.”

The committee made these observations when considering an own motion investigation of a lawyer, Warwickshire.

Warwickshire had previously been employed at several different firms. The own motion investigation arose when Warwickshire’s former employers notified the New Zealand Law Society that they had discovered “a significant number” of documents containing private and confidential information about identifiable current and former clients of two of Warwickshire’s former employers on the server of her most recent former employer.

The two former employers also advised that Warwickshire had apologised to them and clarified that she held no other information than that found on the most recent former employer’s server and had not disseminated confidential information to any third parties in any way.

The committee noted Warwickshire’s intention was to copy and retain the documents for use as precedents.

In addition, Warwickshire’s response to the committee included an acknowledgement of her wrongdoing in copying and retaining documents in the manner she did.

“Retention of documents for use as precedents was common practice amongst the profession, however the committee held concerns about the potential volume of documents and [Warwickshire]’s disregard for the confidentiality issues raised,” the committee said.

“At times [Warwickshire] neglected to remove client information when she retained/stored the documents, and this meant that documents (including client information) were transferred to other law firms where [Warwickshire] was subsequently employed.

“By transferring the documents to a firm outside of the firm where the client(s) sought representation, [Warwickshire] failed to protect and hold client information in strict confidence.”

The committee considered that Warwickshire’s conduct was in breach of both rules 8 and 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and would therefore meet the threshold for unsatisfactory conduct.

Rule 8 provides: “A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.”

Rule 11 provides: “A lawyer’s practice must be administered in a manner that ensures that the duties to the court and existing, prospective, and former clients are adhered to, and that the reputation of the legal profession is preserved.”

However, the committee observed that there were a number of circumstances that eased its concerns about the breach of confidentiality in this matter. These included:

  • there was no information to suggest Warwickshire had copied, retained and/or used any confidential and/or personal client information for personal gain, against the interests of any client or for the benefit of a third party;
  • Warwickshire had stored the information securely on servers at the three firms, albeit in breach of the original obligations to clients of the firms;
  • Warwickshire’s acceptance of the issue when it was raised with her;
  • Warwickshire deleted the material promptly and advised she had changed her practice to ensure the issue does not arise again.

The committee also gave some consideration to the wider context of Warwickshire’s conduct, including:

  • Warwickshire had made no secret of the precedents she stored;
  • she was not advised at an earlier time of the issues arising from the copying and retention of precedents in the manner that she did;
  • the committee’s view that Warwickshire’s conduct may not be uncommon, and its view that similar issues in relation to the storage and use of precedents may arise in other practices and for other practitioners.

Warwickshire had made an “error of judgement and breached her professional obligations by copying and storing documents containing client information”, the committee said.

“However, after considering these matters, and all the circumstances, the committee decided that the matter did not warrant a disciplinary finding.”

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