Appendix C: Submissions from the professional bodies
Bar Standards Board
(1) Is there any kind of duty not to name clients publicly in your profession (as distinct from revealing the content of any advice given)?
There is no express duty on barristers not to name their clients publicly. However, under Core Duty 6 and rule C15.5 of the Bar Standards Board’s Handbook, barristers are under an obligation to keep the affairs of each client confidential, except where disclosure is required or permitted by law or where the client has given consent. Revealing a client’s name could amount to a breach of these obligations where knowledge that the client has sought legal advice is not in the public domain. Further, most client communications, advice and litigation documents are subject to legal privilege. This prevents barristers from disclosing the content of such communications/documents. Again, disclosing the name of the client could be a breach of legal privilege. This is a complex area and the Committee may wish to seek legal advice to ensure that the proposed obligations take into account issues of legal privilege.
(2) If so, is this duty written down anywhere in professional guidance? If not, on what basis could such a duty be asserted?
See response to (1) above.
(3) Are there any exceptions to such a duty? Is the duty discharged if the client waives the right to confidentiality or if the relationship legitimately becomes known in the public domain, e.g. in court?
See response to (1) above. If a matter is already in the public domain by virtue of legal proceedings in court, the barrister’s representation of a client will usually be recorded on the court records and in the public domain. A client can waive confidentiality and legal privilege by express consent.
(4) We are working on the assumption that the level of earnings will always need to be disclosed, even if the name of the client is not, with the public interest trumping commercial confidentiality. Do you have any comment on this?
We have no comment to make – this is a matter for the House of Lords. However, if the client is named then the earnings would need to be kept confidential as part of the client’s affairs.
(5) In many cases, it may be difficult for Members to identify what proportion of the fees paid by a client are attributable to their own work as opposed to the work of others in their organisation. In such cases, we assume that the only option would be to register the total amount paid by the client to the organisation over the year. If you have any comments or suggestions on this, please say.
The majority of barristers are self-employed, so it should not be difficult for most barristers who are Members to identify the fees paid to them by a client. Otherwise we have no comment to make on this, which is a matter for the House of Lords.
Faculty of Advocates
(1) Is there any kind of duty not to name clients publicly in your profession (as distinct from revealing the content of any advice given)?
It would be expected that practising advocates would not reveal to anyone not entitled to the information the fact that person P has sought their advice. This is part of the duty of confidentiality. Confidentiality is a primary and fundamental right and duty of the advocate. The question seeks to draw a distinction between naming clients and revealing the content of advice given. This can be an illusory distinction, at least as far as Scots law is concerned (“Nor am I attracted by the proposition that the client’s identity is necessarily or even readily to be seen as extraneous to the confidential communication. On the contrary, it seems to me to be quite artificial to distinguish the identity of the client from the subject matter of the solicitor/client relationship.” Conoco (UK) Ltd v The Commercial Law Practice 1997 SLT 372 at 378, Lord Macfadyen). The fact that P has sought legal advice is, itself, likely to be indicative of how P views a matter in which they are involved. If P, or P’s situation, is known, for an advocate to disclose that P has sought their advice would have a revelatory effect.
(2) If so, is this duty written down anywhere in professional guidance? If not, on what basis could such a duty be asserted?
The duty of confidentiality is set out in section 2.3 of the Guide to the Professional Conduct of Advocates (7th edition, October 2019) available at http://www.advocates.org.uk/media/3199/guide-to-conduct-7th-edition-october-2019.pdf
The duty of confidentiality is, however, binding on an advocate not merely as a matter of professional discipline, but also at common law.
(3) Are there any exceptions to such a duty? Is the duty discharged if the client waives the right to confidentiality or if the relationship legitimately becomes known in the public domain, e.g. in court?
The duty is in relation to specific pieces of work, that is the seeking of advice or the conduct of litigation on a particular matter. It would be unlikely to extend to any longer-term arrangement, known as a retainer, paid to an advocate, which may be more the type of relationship which the changes to the House of Lords Code of Conduct envisage. The consultation refers to a duty on Members of the House ‘to register all clients they personally work with’. A retainer is the only situation in which there is a continuing general relationship between an advocate and a client. It would be likely to depend on circumstances whether it would be a breach of the obligation of confidentiality for an advocate to disclose publicly that they had been instructed for specific pieces of work, or retained by organisation X or individual Y.
(4) We are working on the assumption that the level of earnings will always need to be disclosed, even if the name of the client is not, with the public interest trumping commercial confidentiality. Do you have any comment on this?
It is hard to see that disclosure of the level of earnings from clients unspecified would breach a professional obligation. Indeed the Scottish Legal Aid Board has, for many years, listed advocates by name alongside the amounts they have earned from legal aid work in the preceding year.
(5) In many cases, it may be difficult for Members to identify what proportion of the fees paid by a client are attributable to their own work as opposed to the work of others in their organisation. In such cases, we assume that the only option would be to register the total amount paid by the client to the organisation over the year. If you have any comments or suggestions on this, please say.
This would not apply to advocates, whose fees are always received by them as individuals. Advocates continue to be forbidden from entering into partnership.
Institute and Faculty of Actuaries
(1) Is there any kind of duty not to name clients publicly in your profession (as distinct from revealing the content of any advice given)?
The Actuaries’ Code does not specifically prohibit disclosure of a Member’s client’s identity, however there are general duties around confidentiality.
The key professional ethical requirements applying to our Members are set out in the Actuaries’ Code, which can be accessed on the following link on the IFoA website: https://www.actuaries.org.uk/system/files/field/document/Revised%20Actuaries%27%20Code%20FINAL.pdf.
Amplification 1.2 of the Actuaries’ Code states that “Members should respect confidentiality”. The word “should” indicates that the presumption is that Members comply with this provision however it is recognised that there will be some circumstances in which Members are able to justify non-compliance.
(2) If so, is this duty written down anywhere in professional guidance? If not, on what basis could such a duty be asserted?
Please see above.
(3) Are there any exceptions to such a duty? Is the duty discharged if the client waives the right to confidentiality or if the relationship legitimately becomes known in the public domain, e.g. in court?
As explained above, the requirement is a ‘should’ obligation therefore non-compliance may be justified in certain circumstances.
The non-mandatory guidance (the Guidance) to the Actuaries’ Code states that sensitive information will not be shared without permission other than in exceptional circumstances and that whilst the duty of confidentiality is important, it is not absolute.
In particular, it states that information can be disclosed by Members in certain circumstances where “disclosure is required by law, is permitted by law, and can be justified in the public interest”.
The guidance states that information which is already lawfully in the public domain is “not ordinarily confidential”.
The full details of the information referred to above can be found at paragraphs 3.9 to 3.16 of the Guidance, which can be accessed on the following link on the IFoA website: https://www.actuaries.org.uk/upholding-standards/standards-and-guidance/actuaries-code.
(4) We are working on the assumption that the level of earnings will always need to be disclosed, even if the name of the client is not, with the public interest trumping commercial confidentiality. Do you have any comment on this?
The IFoA does not have any comments to provide on this.
(5) In many cases, it may be difficult for Members to identify what proportion of the fees paid by a client are attributable to their own work as opposed to the work of others in their organisation. In such cases, we assume that the only option would be to register the total amount paid by the client to the organisation over the year. If you have any comments or suggestions on this, please say.
The IFoA does not have any comments to provide on this.
Institute of Chartered Accountants in England and Wales
General comments
Chartered Accountants are expected to demonstrate the highest standards of professional conduct and to take into consideration the public interest. Ethical behaviour by our members plays a vital role in ensuring public trust in financial reporting and business practices and upholding the reputation of the accountancy profession.
The ICAEW Code of Ethics6 (the Code) is available at https://www.icaew.com/technical/ethics/icaew-code-of-ethics/icaew-code-of-ethics. The Code helps our members meet the above obligations by providing them with ethical guidance.
Paragraphs 55B and 64A of the revised House of Lords Code of Conduct suggest that our members would need to apply for an exemption on the grounds of a duty of confidentiality. We believe this approach should be based on the individual member’s circumstances, covering all current and future relationships, rather than having to seek an exemption on a client-by-client basis. We believe additional clarity on this point is required.
The revised House of Lords Code of Conduct suggests that where a member claims an exemption on the grounds of duty of confidentiality, then they are still required to register the type of client and fees disclosed (in bandings) without naming the client. It would be essential that the client could not be identified by this disclosure, otherwise the member could be in breach of their duty of confidentiality. We believe additional clarity on this point is required.
(1) Is there any kind of duty not to name clients publicly in your profession (as distinct from revealing the content of any advice given)?
(2) If so, is this duty written down anywhere in professional guidance? If not, on what bases could such a duty be asserted?
The Code sets out how our members should behave in respect to confidentiality:
“The principle of confidentiality is not only to keep information confidential, but also to take all reasonable steps to preserve confidentiality. Whether information is confidential or not will depend on its nature. A safe and proper approach for professional accountants to adopt is to assume that all unpublished information about a client’s or employer’s affairs, however gained, is confidential. Some clients or employers may regard the mere fact of their relationship with a professional accountant as being confidential.”
(Paragraph 114.0 A1, Page 15)
The Code does not explicitly state that there is a duty not to name clients publicly. However, we consider that the default position implied above in Paragraph 114.0 A1 of the Code would be that our members should keep the names of their clients confidential, unless there is a reasonable justification for disclosure (see paragraph 8), or the existence of the professional relationship is already in the public domain.
There are specific disclosure and reporting requirements for certain types of services that our members might provide, where the fact that the member acts for a client would be in the public domain. This includes, for example, certain insolvency appointments, or where our member firm acts as a statutory auditor.
(3) Are there any exceptions to such a duty? Is the duty discharged if the client waives the right to confidentiality or if the relationship legitimately becomes known in the public domain, e.g. in court?
The Code provides a number of circumstances where a member can breach their ethical duty of confidentiality, including:
“(a) Disclosure is required by law, for example:
(i) Production of documents or other provision of evidence in the course of legal proceedings; or
(ii) Disclosure to the appropriate public authorities of infringements of the law that come to light;
(b) Disclosure is permitted by law and is authorised by the client or the employing organisation; and
(c) There is a professional duty or right to disclose, when not prohibited by law:
(i) To comply with the quality review of a professional body;
(ii) To respond to an inquiry or investigation by a professional or regulatory body;
(iii) To protect the professional interests of a professional accountant in legal proceedings; or
(iv) To comply with technical and professional standards, including ethics requirements.”
(Paragraph 114.1 A1, Page 15)
If a client provided authority for the member to disclose the existence of their professional relationship, then this may be permissible under the Code. However, further consideration would also need to be given to the members’ legal obligations, and any GDPR requirements.
(4) We are working on the assumption that the level of earnings will always need to be disclosed, even if the name of the client is not, with the public interest trumping commercial confidentiality. Do you have any comment on this?
Details of the fees that a member earns from a client would not usually be information in the public domain, other than where certain services have specific disclosure requirements. For example, the statutory audit fee charged to an audited entity would usually be disclosable in the statutory accounts of the entity, plus fees for any non-audit services the auditor firm had provided to the entity.
Where this information is not in the public domain, client consent for the disclosure of the fees charged would likely be necessary if the client was named.
(5) In many cases, it may be difficult for Members to identify what proportion of the fees paid by a client are attributable to their own work as opposed to the work of others in their organisation. In such cases, we assume that the only option would be to register the total amount paid by the client to the organisation over the year. If you have any comments or suggestions on this, please say.
We have no comments on this question.
Solicitors Regulation Authority
(1) Is there any kind of duty not to name clients publicly in your profession (as distinct from revealing the content of any advice given)?
(2) If so, is this duty written down anywhere in professional guidance? If not, on what basis could such a duty be asserted?
Yes - Solicitors are required to keep the affairs of clients confidential which would include their identity and the fact they have instructed the solicitor or their firm. This duty of confidentiality exists as an obligation under both common law and data protection legislation as well as being one of the core professional principles set out in statute (see Section 1(3)(e) of the Legal Services Act 2007) and underpinned by the SRA Standards and Regulations (see paragraph 6.3 of the SRA Code of Conduct for Solicitors, RELs and RFLs7). This is supported by guidance (see Guidance note “Confidentiality of client information”8).
(3) Are there any exceptions to such a duty? Is the duty discharged if the client waives the right to confidentiality or if the relationship legitimately becomes known in the public domain, e.g. in court?
Yes - Disclosure of client confidential information is permitted in certain circumstances. These include with the consent of the client and when such disclosure is permitted by law (see Guidance note “Confidentiality of client information”).
(4) We are working on the assumption that the level of earnings will always need to be disclosed, even if the name of the client is not, with the public interest trumping commercial confidentiality. Do you have any comment on this?
(5) In many cases, it may be difficult for Members to identify what proportion of the fees paid by a client are attributable to their own work as opposed to the work of others in their organisation. In such cases, we assume that the only option would be to register the total amount paid by the client to the organisation over the year. If you have any comments or suggestions on this, please say.
The level of earnings or fees received by a solicitor (or their firm) from a client could possibly be disclosed as long as in doing so the duty of confidentiality is not breached, including their identity. The practical steps that may be required by solicitors or their firms to identify and attribute fee income would depend on their own finance systems or commercial arrangements. As such we are unable to provide further comment on this point.
6 ICAEW’s Code of Ethics was recently revised, with the current version applying from 1 January 2020.