The trouble with confidential calls in public places

You are a litigation partner in a highly regarded law firm. You have been retained in this instance by an insurer and their insured to defend a claim against the insured for alleged negligent advice given to a bank for which the bank suffered a loss. The insurer is one of your firm's long standing major clients. The insured is also a repeat client who recommended to their insurer that you act in this matter.

You are coming close to the deadline for providing standard disclosure as set out in the directions order. You are on your commute home when you are called by the insured on your work Blackberry. She has called to discuss the disclosure method and strategy over the phone in relation to the particular information provided by the insured.

The next day you get into the office and the senior partner asks to discuss this matter with you. He informs you that a claims handler at your insurer client called to explain that they had overheard your conversation about the claim on your commute the previous evening and expressed their concern that potentially sensitive calls were being taken in public areas. The insurer is of the view that it was very fortuitous that it seems that it was only one of its employees that overheard the conversation as, if this information had been heard by the claimant or the claimant's solicitors, it could have been very damaging.

In the circumstances you must call the relevant claims handler dealing with this matter at the insurer and apologise immediately in your own capacity and on behalf of your firm. You should also call the insured to make them aware of the matter and apologise. Given that the information, as you understand it, has not been overheard by anyone who might otherwise use this information to the insurer or insured's detriment there does not seem to be any reason to inform your professional indemnity insurers at this stage.

However, you should also inform your firm's COLP as regards any possible breach of client confidentiality under the SRA code of conduct but also in relation to any potential data protection breach. The COLP will then decide, depending on the nature of the information discussed by you and the context, whether this needs to be taken forwards and whether any notifications should be made to the Information Commissioner and/or to the SRA.

Internal review

The firm itself should also send a firm-wide email or post a summary of the matter on the intranet as warning to all staff regarding client confidentiality and data protection. It serves as a reminder to fee earners not to take work calls in public places. Not only might this have been potentially damaging to your claim but you might not be aware of damage to the firm if this was overheard by other potential clients who might decide not to instruct you on the basis of this behaviour.

Any complaint should of course be taken as an opportunity to review your policies and procedures. Of course you firm's data protection policy will incorporate any factors relevant to your work away facility but you may feel that this needs to be tightened particularly taking into account any requirements of the SLA (if not previously done). You should inform your clients (insurer and insured) of these measures to ensure this does not happen again and remind your clients of their value to the firm. Given that the insurer and insured are both important clients to the firm you may wish to engage your marketing and PR departments to assist in smoothing over the damage. SJ