LAWYERS' ETHICS - SEMINAR TWO: CONFIDENTIALITY

(5.00 - 7.00 pm Monday wk 7, MT 2000 Harris Seminar Room, Oriel College)



Reading:

The Law Society, The Guide to the Professional Conduct of Solicitors, (8th edition 1999), Chapter 16 and Annexes 16A, 16B; Principles 21.01, 21.13 and Annex 21F



General Council of the Bar, Code of Conduct (7th edn, 2000) paras 302, 603 (f), 608(b),702



A Boon and J Levin, The Ethics and Conduct of Lawyers in England and Wales, (Oxford, l999), Chapter 10



** M H Freedman, Lawyers' Ethics in an Adversary System (Indianapolis, l975), Chapters 1 and 3



** D Luban, Lawyers and Justice (Princeton, l988) Chapters 9 and 10



D Nicolson and J Webb, Professional Legal Ethics (Oxford, 1999) Chapter 9



R H S Tur, "Confidentiality and Accountability" Griffith Law Review 1 (1992) 73



Further Reading

W H Simon, The Practice of Justice (Harvard, 1998) pp54-62



Allan C Hutchinson, "Sex, Lawyers and videotapes ..." New Law Journal 7th July 2000 1008-1010



Cases:

Spaulding and Zimmerman 116 NW 2d 704 (1962)

** R v Derby Magistrates Court ex parte B [l995] 3 WLR 681; {1995} 4 All ER 426

Essex Council v R (Note) {1994} Fam 167; [1994] 2 WLR 407

Oxfordshire County Council v M {1994}1 FLR 175; [1994] 2 WLR 393

Re L (Police Investigation : privilege) {1996} 1 FLR 731; [1996] 2 All ER 78

Francis and Francis (a firm) v Central Criminal Court [1988] 3 All ER 775

Ablitt v Mills and Reeve, The Times, 25 October l995

General Mediterranean Holdings SA v Patel and another [1999] 3 All ER 673



Essay/Discussion Topics:

How, if at all, is it possible for a lawyer fully to discharge both the duty of confidentiality to clients and the duty not to mislead the court. Is the Law Society's guidance to solicitors helpful in this respect?



Consider the merits of the duty of confidentiality in cases such as the following:

(1) A client charged with the murder of one victim revealed to his lawyers where the bodies of other victims could be found. Despite anguished pleas for information from a parent of one of these other victims, the lawyers refused to provide any, and, subsequently, their refusal was judicially approved as being required by the confidentiality of the client-lawyer relationship.

(2) A client and another had been convicted of a murder and awaited execution. The client retained lawyers for an appeal. He revealed to these lawyers that he had framed the other out of spite. The duty of confidentiality required these lawyers to say nothing even if their silence led to the execution of the innocent victim.

(3) A client continues to manufacture and sell a life-threateningly dangerous item (such as the infamous Ford Pinto or the Dalkon Shield), with full knowledge of the risk because a cost-benefit analysis has indicated that it is cheaper to pay compensation, if sought, for several hundred deaths and several hundred more serious injuries than it is to recall the faulty items and replace them with safe ones. The duty of confidentiality requires these lawyers not to disclose the terrible menace posed by these items.

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