|Mr Alan Street (Acting Chair)||Mr John Hannam||Mr Simon Sapper|
|Mr Jonathan Acton Davis QC||Ms Karen Mackay||Ms Peta Sweet|
|Professor John Bell QC (Hon)||Professor Richard Moorhead||Mr John Young CBE|
|Professor Hugh Brayne||Mr John Randall QC|
|Mr Jonathan Goldsmith||Mr John P Randall
15.2.1. "There is a conflict of interests if for any reason your ability to advise and/or act for the client properly and impartially is inhibited, or if a fair-minded and informed observer would conclude that there is a real possibility that that were so."
15.3.1. "(i) all clients' best interests are served by you and/or your practice acting for them all; and,"
15.11.1. "There is a conflict of interests if for any reason your ability to advise and/or act for the client properly and impartially is inhibited or if a fair-minded and informed observer would conclude that there is a real possibility that that were so".
15.12.1. "(i) all clients' best interests are served by you and/or your practice acting for them all; and,"
16.1.1. "A solicitor may reveal confidential information to the extent that he or she believes necessary to prevent the client or a third party committing a criminal act that the solicitor believes on reasonable grounds is likely to result in serious bodily harm."
16.2.1. "There may be exceptional circumstances involving children where a solicitor should consider revealing confidential information to an appropriate authority. This may be where the child is the client and the child reveals information which indicates continuing sexual or other physical abuse but refuses to allow disclosure of such information. Similarly, there may be situations where an adult discloses abuse either by himself or herself or by another adult against a child but refuses to allow any disclosure. The solicitor must consider whether the threat to the child's life or health, both mental and physical, is sufficiently serious to justify a breach of the duty of confidentiality";
16.2.2. "In proceedings under the Children Act 1989 solicitors are under a duty to reveal experts' reports commissioned for the purposes of proceedings, as these reports are not privileged. The position in relation to voluntary disclosure of other documents or solicitor/client communications is uncertain. Clearly advocates are under a duty not to mislead the court (see 21.01, p.374). Therefore, if an advocate has certain knowledge which he or she realises is adverse to the client's case, the solicitor may be extremely limited in what can be stated in the client's favour. In this situation, the solicitor should seek the client's agreement for full voluntary disclosure for three reasons:
16.3. The Panel accepts that explanation. However the need for the explanation to the Panel reinforces the concern over that provision. The rules currently only refer to these situations through the somewhat opaque reference to 'or permitted'. The currently proposed guidance also fails to clarify the examples set out above as regards serious physical harm and child abuse, although the Law Society have indicated to the Panel that the draft guidance will be amended. The Panel's view is that the rules should refer clearly to the ability of solicitors in exceptional circumstances to breach confidentiality. The Panel advises the Secretary of State to require the Law Society to expressly define within rule 16(E) the actual test(s) laid down in law to which implied reference is made by the current wording ("or permitted by law").
16.4. Further, the Panel's reading of (4) and (5) is that the consent provisions under 16E(5) are only called into play by 16E(4) where there is confidential information held which (a) might reasonably be expected to be material and where (b) the client has an adverse interest to the client about whom the confidential information is held. The Panel was unable to understand why there is any need for the existence of an adverse interest. A client about whom confidential information is held which is relevant to another matter should be protected by information barriers and consent regardless of the existence or otherwise of an adverse interest. The Panel advises the Secretary of State to require the Law Society to delete 16E(4)(ii) before approval is given.
16.5. The concept of "Informed Consent" arises in rule 16E(5). The Panel refers to paragraphs 15.5 and 15.14 above. The Panel advises the Secretary of State to require that similar safeguards are inserted in Rule 16(E)(5).
16.6. The Panel, therefore, advises the Secretary of State to approve the proposal to amend rule 16 of the Solicitors' Practice Rules 1990 by making the new rule 16E only after compliance by the Law Society with the advice in paragraphs 16.3-16.5 above.
17.1. The Panel advises the Secretary of State that the Law Society be given approval to amend Rule 16 of the Solicitors' Practice Rules 1990 by making a new Rule 16D, subject to the recommendations in paragraphs 15.11 to 15.20 above.
17.2 The Panel advises the Secretary of State that the Law Society be given approval to amend Rule 16 of the Solicitors' Practice Rules 1990 by making a new Rule 16E, subject to the recommendations in paragraphs 16.3 to 16.5 above.