THE NEVER ENDING DISCUSSION OF A "LAWYER & CLIENT RELATIONSHIP"

The following will highlight the key feathers of a lawyer and client relationship which for many centuries since the inception of a professional lawyer, their duties and conducts have been questioned and criticized by many commentators throughout the history of the world and the issue that we are seeking to highlight here is the nature of the relationship between a 'client' and a 'lawyer'. So, there are several reasons why anyone would prefer a lawyer’s advice. Some need an advocate to represent them in the court or drafting a Will for them or fight for the client’s own interest by making sure that he (client) through him (lawyer) achieves the best outcome. Many scholars have tried to define the relationship between a lawyer and a client over the decades of law practice. Before reaching to any conclusion or discussion it is imperative to consider the BSB Handbook on professional codes and SRA code of conduct in the UK in relation to the lawyer and client relationship. Specifically focusing on both in BSB codes such as C3, CD2, CD6 & CD7 and SRA codes, Principle 4 & 5 which in a nutshell is that lawyers' have the "duty to promote the interest of the client" & while promoting their interest it needs to be "keeping everything between them confidential" and the lawyer client or attorney client privilege; "must provide a proper standard of service to their clients" and these points will be discussed respectively.

The meaning behind promoting a client's interest still remains a subject of critical conversations whether it is for the client to decide what is best for them or is it the lawyer who should be the one to bring the final decision for their client by acting in their best interest?

The significance of 'autonomy' in a lawyer- client relationship:

Two most prominent researchers of lawyer's ethics "Andrew Boon" & "Jennifer Levin" suggested that the 'modern view' regarding the relationship stated above is that it should be the lawyer's duty to let the client make decisions on their own mental judgment by providing them with the possible options and that they receive proper information; It is possible by empowering the client. This is known as the doctrine of "autonomy" where the client will be given essential information and it depends on the client what to choose for him/her, but a warning must also be given to the client that any decision taken by him/her should never cause harm to anyone; even issuing cautions to the client from the counsel/lawyer may be necessary so that the client knows about the possible results of the action taken by their lawyer. In the words of Jonathan Herring, while conveying the autonomy approach a lawyer must bear in mind that not everyone has the same sense of interest of making decisions on their own otherwise they would not have come to a lawyer to seek advice and also because people may at times are driven away by their deep rational state of mind. Though it was argued by Rober K. Vischer, that attempting to engage in moral dialogues with clients might help them to reach their decision. Even Professor W. Bradley Wendel is of the same view as Vischer and according to him (Wendel); clients may not be more or less competent than the lawyer regarding "moral training or authority". He emphasises that a lawyer should know when to stop addressing such moral dialogues so as to keep it within the scope of law, though the task of knowing the moral boundary is difficult as it requires "active & deliberate" dialogues of morality. This strict adherence to autonomy based approach has been criticised by many for example, a client does not always want to understand the complex issues of law because it is the job of the lawyer to interpret it into simple words through giving an advice rather than conveying everything that the lawyer knows concerning the matter of law which gives the lawyer a rather better and dominant position while giving effect to the interest of the client. In the opinion of Mendez, it is not completely possible for an advocate or a lawyer to make a client grasp the psychological capacity to make a decision while applying the 'autonomy' based approach because someone who seeks to get advice from a lawyer on legal issues regarding their personal or financial difficulties may be facing intense trauma in their life. Secondly he adds that, the scope of options for a lawyer while conveying advice to their clients is very limited and at times there are situations when most of the options are not the ones to select as they may not be preferable to the client.

Thought it can be said that, in these circumstances the client does not truly have enough to do about the matter rather than accepting the best possible option.

While agreeing with 'Boon' & 'Levin', Robert Dinerstein in his article called, "Client-centred counselling: Reappraisal and refinement" stated with the appreciation of the autonomy approach by declaring that the 'modern view' is more efficient where there is participation both by the lawyer and the client through their mutually agreed "relational and dialogic" conversations which is a centre part of the relationship between an attorney and a client. This approach also seems more effective than many other options.

 Traditional paternalistic form of relationship:

On the other hand, there is an opposite kind of approach towards a client-lawyer relationship and it is called 'paternalism'. As Jonathan Herring states that, paternalism is known as something where the lawyer has all the authority to make a decision for their client as fits best and those who believe that paternalism is someway better than autonomy forms the basis of their argument on the explanation that lawyers have better understanding and knowledge of the law which puts them in a comfortable position to make any decision which is best for their client. Though in a 'paternalistic' approach, a client has very less contribution to make except for providing all the relevant information to the lawyer. For instance according to Dworkin while referring to paternalism stated that, even where the person's own views or liberty is at stake the action taken for him/her could justified if it is done in order to promote the welfare, needs or interests and happiness of that person. It can be suggested that a mutually accepted decision taken between the lawyer and client could be a far better approach because it preserves the integrity and honor of the client. In an article namely "The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling", it was stated by Mark Spiegel while referring to William Simon said that, 'it was stated by Simon that autonomy is a crude view on contrary to paternalism which helps a lawyer to make good choices by influencing their clients and will result in decisions which are in the best interest of the client.' The principle of paternalism is not without criticism, Luban argued that paternalism is not useful where there are various acceptable ways to get a case or problem solved; so, the client would be in a better position to make decision in case of where there is an availability of wider range of proposals. Therefore, Herring argues in favour of paternalism by stating that a person seeking legal advice from a lawyer is most likely to be a lay person who has less knowledge regarding many statutory or perhaps legal rules as a result relies on the lawyer to make the judgment call for him/her; typically the general practice in the legal profession is where the clients strictly follow the path which their lawyer presented to them.

In the following few portions it will concern various kinds of models that have been developed or still are developing in the legal arena. First of these are,

The Agency Model of relationship between lawyer & client:

Many scholars are of the opinion that a lawyer is an "agent" of a client where the client is being referred as the "principal". The lawyer would do everything whatever job the client wants regardless of what opinion the lawyer posses. According to Jean R. Sternlight in 'Behavioral Legal Ethics' said that, while conveying the wish of the client a lawyer may get into positions where, their ethics in regards to that task may come into question or may complicate their ethical standard. He added that, a client will have more willingness to appoint a task to the lawyer which the clients may never attempt to engage if they were to participate themselves in the act. It can argued that, even though in an agency model the lawyer is acting on behalf of the client yet if a lawyer does not recommend anything from his part then his duty towards the profession would be undermined as well. Many scholars such as, Markovitz in giving light to this argument stated that, it would not be a proper role for the lawyer to judge the client rather than just merely submitting to the wish of the client. Some may have adverse views regarding agent client relationship but Jennifer K. Robbennolt said defending the agency model that it creates an ethical check and balance between the two and while pointing out some benefits of lawyer client relationship with reference to agency she added that, because of being a temporary or periodic engagement between the two it is very easy for the lawyer to notice any change where regarding the law or general practice. While on the other hand the client may not observe such changes or shifts in the practice. Lastly, Herring suggests that, a lawyer is someone from whom people expect advice and is bound by various duties which includes duties to the codes, court etc; so, a lawyer cannot only be an agent rather someone who has the ability and opportunity to bring his/her own advice into the scene. So, can it be emphasized that this agency model is also not the definitive answer to the question of what is a proper model of a lawyer and a client relationship?

Relationships of contractual nature:

The contractual nature of the relationship between a lawyer & a client is to be determined and executed on the basis of the terms stated in the agreement between them. According to an article by Minn. L. Rev. Editorial Board stated that the existence of lawyer client relationship starts from the point where the lawyer has expressed that he has taken the responsibility to represent the client thus, arising a contract between them. Under other conditions, Jonathan Herring stating on behalf of other commentators that, the duties imposed on a lawyer through a contract between their clients is similar to those established principles in the codes and ethical standards which a lawyer is altogether has to abide by. So it can be submitted that even if there is no contract between them, there will be implied restraints on the lawyer eventually.

Relationship of fiduciary nature between lawyer & client:

Fiduciary is a person who has been given a responsibility on confidence to take proper care of the subject matter or interest of a person known as beneficiary and for the purpose of this part, a 'client'. Selena E Mize, in an article stated that the relationship between lawyer- clients is fiduciary and it is undisputed. In the same article it was also stated while referring to the Law Commission of England & Wales that, the term fiduciary is "highly complex", "poorly delimited" and that not all the duties of a lawyer can be of fiduciary nature. It be said that there are both for and against arguments about the nature of this kind of relationship even though it is at the core of lawyer-client relationship. According to Herring, the duty of a fiduciary is similar to those of lawyer as it prohibits the lawyer to make any gain from the position they hold as fiduciaries towards their respective clients. He also makes a point clear and puts a weight on the argument that, while conducting a fiduciary relationship a lawyer may have to engage in various acts or omissions and in such a case, it is not that important for an attorney to seek permission for every act they are getting engaged because they are already acting as the client's fiduciary. So, it is expected from them to act in the best interest for the client. In the case of Hilton v Barker Booth and Eastwood, where Lord Walker stated that, the relationship between a client and a lawyer is based on trust and the client has confidence over the lawyer that he(lawyer) will act depending upon the consisting express or implied terms as the primary relationship between a lawyer & clients is firmly contractual.

At the end there lies a question of whether the relationship between them is contractual or fiduciary or both or a mixture? This question has concerned many commentators and has been explained in Hospital Products Ltd v United States Surgical Corp which was cited by the Privy Council in the case of Kelly v Cooper that, both contractual and fiduciary relationships are capable of existing together in synergy because the foundation of a fiduciary relationship arises from circumstances of a contractual relationship. So, in order to make a proper relationship between a fiduciary and beneficiary or a client, the terms stated either implied or expressed must be complied accordingly.

From the above discussion it can be adduced that, all of the models are essential and plays vital importance to the relationship but one model particularly, the fiduciary model has stand out and if there is more client- lawyer mutual participation in a fiduciary relationship then great prospects can be achieved.

Therefore, the next point to be considered in a lawyer-client relationship is the issue of 'confidentiality', 'conflict of interest' & 'legal privilege'. In the following all of them will be examined thoroughly.

The Rule of Confidentiality:

At first it should be mentioned that the usefulness of confidentiality in a lawyer-client relational engagement is based at the heart of this relationship which requires a lawyer not to disclose any information the client has provided them unless otherwise specified. This relationship is built on this confidence and it is applicable not only for lawyers but for any other professions; for example, a doctor, an auditor or any other professional person who are bound to keep their customer or client's information confidential. As Herring states, a person giving private information to a lawyer would presumably be confidential information and if the lawyer discloses or attempts to disclose such information without the consent of the client or that person then it can be proved that confidential information has been threatened. He adds by bringing an example of a celebrity talking to a lawyer about his cancer which is not known to general people or anyone and is a conversation between only two of them making a secret conversation; thus, building a confidence between both of them and if breached would be subjected to a claim. On the other hand he further explains as to why announcing something at a party by a celebrity may not governed by the law of confidentiality though, it depends upon the nature and time of the information whether it amounted to confidentiality or not. The issue of confidentiality is connected to a similar important requirement for a lawyer to maintain which is "conflict of interest". According to Herring, the doctrine of conflict of interest is to be regarded as the central pillar in relation to the ethical obligation of a professional lawyer and it is where the lawyer is expected to avoid or should avoid any circumstances that would raise or have potential risks for raising conflicts between their clients and it includes interests that are attached to the lawyer himself. Therefore, this rule may sometimes put a lawyer in a difficult situation and he may end up losing or harming one of his clients interests as there was conflict between the two or if not more and it is also his obligation to avoid such conflicts. As Charles P. Kindregan described in "Conflict of Interest and the Lawyer in Civil Practice" that the avoidance of any conflict of interest is the "keystone of the profession".

So, there are provisions in the code of conducts for a lawyer, Solicitor or a Barrister to maintain and abide by the rules and also follow the ethical standards. On one side according to "Bar Code of Conducts 2015" of the BSB Handbook CD6 which expressly states that, 'affairs must be kept confidential for each and every client'; and regards to conflicts between clients BSB states in oC12 that "it is not allowed for a barrister to follow or accept the instructions provided by their clients if there is a conflict between barristers' own interest or the clients' or one or more clients interests conflict though except for the fact that it is otherwise specified by the BSB". "SRA Code of Conduct 2011" on the other describes how a solicitor should act in such circumstances and in "chapter 4 & outcome 4.1" stated the same for confidentiality and legal privilege and for conflicts of interests between clients or the solicitors own interest has been mentioned in "outcome 4.4", "outcome 3.6" & "outcome 3.7". Here, outcome 4.4 describes what a solicitor must do when the interest of one client is adversarial to the other client; outcome 3.6 describes the duty of a solicitor when the interest of one client has a substantial common interest with another or more clients; lastly, outcome 3.7 prescribes "the duty of a solicitor when there is a "client conflict" & the objectives are same between the clients' who are competing".

Confidentiality in Legal ethics:

The importance of lawyers' ethics in regards to confidentiality has been recognised by Selena E Mize in her article, "Should the Lawyer’s Duty to Keep Confidences Override the Duty to Disclose Material Information to a Client?" while comparing & contrasting disclosure and confidentiality said that, the range of areas of information covered under confidentiality is bigger than it seems; also the importance of confidentiality is greater than that of disclosure. Herring in his book gave his opinion regarding the "principle of confidentiality" that, the information provided by the client to the solicitor is something of private matter and protecting this private information is the duty of the lawyer, if breached, will be a violation of human rights and also the duties of a solicitor mentioned in SRA code of conducts. It was argued by Toulson and Phipps that any person receiving information in confidence and knows that it is a private & confidential information is bound not to disclose that information. This duty to protect the information is also a fiduciary duty which must be carried out by the attorney or lawyer because as Lord Scott said that, confidentiality can be considered to be the "central pillar" for a lawyer while maintaining their professional conduct through properly following the fundamentals of legal ethics. Further a point can be stressed that lawyers have wider obligations in relation to the 'public interest' and where it would be against the 'public interest if a lawyer discloses such confidential information'. 

Now, the following will further explore the meaning of confidentiality in detail and instances where it has been an issue for the court to decide between confidentiality and the question of disclosure. 

Cases involving Confidentiality:

Firstly, In a case of the House of Lords of Bolkiah v KMPG, there was conflict of interest between two clients of an accountant firm which had significant effect in leaking the confidential information to the other client and Lord Millet gave an extensive explanation on this matter that, a person who has private or confidential information should never leak or disclose such information which would create risks if someone with adversarial interest gets the hold of the information which might result in inconsiderable consequences. Though KPMG argued that there was proper informational barrier between the two clients and cannot be mixed but House of Lords said that the interest of clients would conflict each other and the conflict is inevitable here. Lord Millet emphasized that, taking mere reasonable steps to keep the information confidential is not the duty; the duty is to "strictly keeping the affairs of lawyer and client confidential". He added that, if confidentiality is not followed it would also hamper the "proper administration of justice". Thus the law of confidentiality is of utmost importance and cannot be ignored otherwise.

Another case concerning confidentiality and conflict of interest is Marks & Spencer Plc v Freshfields Bruckhaus Deringer. The facts of this case had to do with confidentiality as there were too many people involved in the work which needed to be kept in confidence and it was almost impossible to make an "informational barrier" and the court also emphasized that a lawyer must also assess the risk of an information or conflict which may arise in a future possible event which should not be only a "theoretical possibility" but something more than that. So, in these situations if confidential information has been breached as a result conflict of interest has also arisen then a client can make a claim for the breach that occurred and may seek to impose injunctions if the court grants. These claims for breaches can be brought under tort law, human rights law or perhaps any stipulated breach came from a fiduciary and courts are always willing to give remedies to the sufferer for any infringement in the law of confidentiality and there are various ways in which these breach can be proved. Adding to the argument of conflict of interest, the case Hilton v Barker Booth & Eastwood [2005] concerned the issues of conflict between clients of a solicitor firm whose interest was contrary to the interest of the other client and the solicitors knew about it yet they proceeded with the acts which according to Lord Walker was a serious breach of the doctrine of conflict of interest. Focusing on confidentiality and conflict of interest there are other cases for example, the case of Koch Shipping Inc. v Richards Butler (a Firm) concerned about a solicitor who became part of the rival team and this raised concerns among the claimants who brought to seek remedy for "breach of confidentiality"; Tuckey LJ took a more diverse view by referring to Lord Millet in Bolkiah v KPMG that, there should be a line that must be drawn to understand whether there is real risk of conflict and breach of that confidential information in relation to that conflict of interest or not because if the facts of the case can be looked in a distance, the risk would not appear to be more than "fanciful or theoretical". In the light of this, Wolfram stated that, any possibility to impose ethical codes should be looked at in detail.

Another way of looking into the principle of conflict of interest is that, the interest need not be only the conflict between clients but also can be the own interest of the solicitor or lawyer which conflicts with the interest of the client. Examples of such incidents are mentioned in the case of Cobbetts LLP v Hodge that, "a lawyer can be in conflict with his own interest in the event where he buys or sells properties with a client or give a sum of money to the client as a loan or give any advice to the client which will give him profit". So, this no conflict rule as mentioned by the SRA as well as by the BSB is applicable both to the lawyers own interest which conflicts over the interest of the clients and also with the interests of those people who are close to the lawyer or has a relationship of intimacy with the lawyer, as mentioned by the case of Richards v Law Society which concerned a case where a transaction was entered into by the client with the solicitors' children and was described as conflict of interest as the children are clearly belongs to the family of the solicitor. Lastly, there are instances where the lawyer or solicitor is negligent while dealing with his client and he discovers such negligence. In this situation conflict of interest arises and solicitor's role is to make aware the client regarding the claim which can be made by the client as the solicitor acted negligently. Similar situation arose in the case of Solicitors Regulation Authority v Dennison where there was conflict with a partner of a solicitors firm who did not inform the clients or even the solicitors of the firm about a interest he had with a company from which the clients were provided medical reports by the help of the solicitors firm and this was amounted to a conflict of interest because the partner had gained profit from that company. Therefore, it can be adduced and can be argued from the discussions above that conflict of interest and confidentiality go parallel by following a single trait.

Legal privilege:

The doctrine of legal privilege has close connection with the "law of confidentiality", though they are interconnected it can be argued that a privileged information or the communication between lawyer and client is somewhat different because this doctrine specifies that, a person cannot be ordered by anyone or even the court to disclose those communications made during the conversation between an attorney and a client. As per the case of Three Rivers District Council v Bank of England (No. 6) which concerned a solicitor firm which is Freshfields and a counsel who both provided advice to Bank of England and the question was whether their advice given to the bank or communications occurred between them amounted to "legal advice privilege" or not and finally later on in House of Lords privilege was explained that "these privilege communications can be any advice given to the client in regards to law being in the receiving end and the lawyer on the other hand conveying it or while preparing the client for the purpose of the litigation. These are all inside the boundary of "attorney client privilege". In this regard Herring mentions that this case reflects that almost everything which a lawyer gives advice to a client is a part of communications happened in series of event whether it be documents or whatever and that they all form part of the professional legal privilege. Adding to this argument, G. Sisk and P. Abbate said that, the case of Three Rivers show obvious indications that legal professional privilege is more than what is known by legal advice. Further in the case of Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow this extension of legal advice privilege was seen and the court affirmed that, "the advice in relation to commercial matters also falls under this as by virtue of advisers of legal matters, lawyers' also give advice regarding commercial matters of a transaction and everything altogether. The court held that, legal advice privilege is to be covered under everything either legal or otherwise and the court is not willing towards separating these two parts of an advice given by the lawyer". Therefore, these areas and many more are also covered by legal privilege, though there are exceptions in relation to these matters of legal privilege and confidentiality.

Exceptions to Confidentiality & Privilege:

1. Consent or Waiver:

First of these exceptions to legal professional privilege and confidentiality is consent. It is where the client gives consent to the lawyer regarding any matter which can be disclosed to the public or elsewhere. According to the case of MAC Hotels Ltd v Rider Levett Bucknall UK Ltd, clients can either expressly or impliedly waive any confidential or privilege circumstance. Though there can be situation where the waiver is not clear from the part of the client and in such a case it remains a question of how it can be considered as consent?

2. Children:

Another exception to this doctrine is where reports made under the "Children Act 1989" for the protection of a child as stated by the House of Lords in the case Re L (Police Investigation: Privilege) where the report was in the possession solicitors of the mother but they did not gave the report to the police while giving reasoning that the report was under legal professional privilege. 

3. Criminal Activity:

According to section 10 of the "Police and Criminal Evidence Act 1984" it is an exception to the privilege rule when someone has an intention of furthering a criminal purpose". The issue of intention regarding this section was examined in the case of Francis and Francis v Central Criminal Court where, the court said the intention refers to the any person, it can be the client or the lawyer or any who are engaged with the criminal property and also emphasized by agreeing that, legal professional can lose at the time when communications are being used for fraud. Although in the case Re McE Lord Phillips arguing against this notion of fraud that this is a crime and these communications related to criminal advice cannot be seen as privilege.

4. Public Interest:

Another exception is where any confidential information can be justifiable in disclosing which is in the public interest but in regards to legal professional privilege mere public interest will not be enough for disclosure as these privilege communications between a lawyer and a client. As mentioned in the case of Attorney General v Guardian Newspapers Ltd that courts in situations where question raises only in matters of confidentiality then the "courts have to give appraisal to the interest of the confidential information and also to the public interest that favours the disclosure".

5. Statute:

Another exception of the legal professional privilege is when by statutory obligation, the statute gives permission to break the privilege. This exception has been given in the Part II of the Regulation of Investigatory Powers Act 2000 where in the circumstances of criminal offences attorney client privilege can be covert through surveillance. The exception also falls under PCA 2002 regarding money laundering. Finally Terrorism Act also allows breaking or breaching lawyer-client legal professional privilege as there are crimes that occurred or may occur.

6. Mediation:

In Mediations it remains question as to whether professional privilege is to be regarded as protected under mediation because these privileges only applies to a lawyer; so, in mediations the matter is not legal and cannot be privileged though confidentiality applies to all and is protected between the parties of a mediation.

7. Client-Lawyer Litigation:

An exception to the principle of confidentiality arises when client is suing a solicitor. This raises a question as to what extent a lawyer can go to breach a confidence of the client.

8. Joint Retainers:

According to the case of R (Ford) v Financial Services Authority, an exception to the confidentiality rule is when two clients together approaches their lawyer to provide them the information and they would receive it together; this is where both the clients gave an implied consent to seek information. Thus confidentiality and privilege has been waived and the lawyer must provide both the clients with the information. 

Lastly, it can be concluded by stating the fact that, lawyer and client relationship is governed by confidentiality and privileges which a lawyer and also the client must be abide by. In the real world situations will indeed arise when dealing with a client to keep in formations, communications confidential but it is the duty of the lawyer by maintaining all the professional codes to protect the interest of the client by ensuring that the information which the client gave him should not be disclosed or used for adversarial or any other purpose that would harm the client except otherwise specified.