Complaints | Best steps when your firm breaches client confidentiality

You are a commercial lawyer who works in a highly regarded boutique media law firm with ?a high profile client list. You have been retained in this instance to draft various agreements for a famous author who is a long standing client of the firm. The agreements have been requested in connection with the author's the new book, The Sparrow's Song, which she has written under a pseudonym. She has made it clear to the ?firm that this is a confidential ?and highly sensitive piece ?of information.

A few weeks after the book ?is launched, you receive a telephone call from the author who informs you that she has been contacted by the press ?in connection with her involvement with The Sparrow's Song. She understood that the individual who leaked this information is a friend of yours and is now making a complaint against your firm. She has also requested an explanation for ?this disclosure.

You now recall that you may have let this information slip to your wife and her trusted friend while at a dinner party although you had made it clear that this was confidential information. In the circumstances you must apologise immediately in your own capacity and on behalf of your firm. Disclosure of confidential information can amount to a breach of outcome 4.1 of the SRA Code of Conduct 2011 which requires that "you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents" and may give rise to a claim for breach ?of confidence.

You should inform your firm's COLP of the breach of the SRA code of conduct and your professional indemnity insurers as a matter of urgency. You might also wish to involve your internal marketing and PR department to limit the media fall out. Given the high profile nature of the client, your firm may not only suffer loss as a result of a claim for damages and loss (if any) for breach of confidence but would also suffer damage to its reputation as a result of the nature of the breach if it does not provide adequate remedy as soon as possible. In circumstances where there is significant press interest in the story, the quicker the complaint is resolved to the client's satisfaction, the lower the impact on the firm's reputation. It also serves to increase the chances that the client will continue to retain the firm in ?the future.

You understand that the book is now doing better as a result of the media leak. However, although the client has suffered no financial loss, they might still have a claim for damages and your firm should attempt to settle any possible future claim early having in mind an analysis of the amount that the client is likely to be awarded at trial. You should attempt to agree these terms and draw up the requisite settlement agreement. Your firm should also report this breach of the SRA outcomes to the SRA. If the matter is now in the public domain you should consider mitigating any reputational harm by way of a formal apology and a press release. You should remind your client of their value to the firm, apologise unreservedly for the upset and damage caused and make it clear that your firm is putting measures in place to ensure that this does not ?happen again. SJ

 

WHAT TO DO 1. First, apologise. 2. Inform the SRA of breach of chapter 4 of SRA code of conduct 2011. 3. Inform professional indemnity insurers of a potential breach of confidence claim. 4. Settle this matter early before it escalates. 5. Send a press release to address reputation damage. 6. Address internal compliance issues. You may wish to organise a seminar to ensure that solicitors are reminded of the SRA code of conduct. 7. Remove your wife’s friend from your Christmas card list.