DUTY OF CONFIDENTIALITY
On 27th February, 2019, President Trump's former Lawyer Michael Cohen testified before Congress. Republican Representative Mr. Paul Gosar asked him about his legal duties to the president. "I'm sure you remember, maybe you don't remember, duty of loyalty, duty of confidentiality, attorney-client privilege," he raged on, implying that Cohen's testimony was a betrayal of his former client.
Besides revealing allegations of wrongdoing, Cohen went on to repudiate Trump with gusto, calling him a "racist," "con man" and "cheat." Like a rueful divorcee, Cohen recounted one Trump-related misdeed after another, repeating "and yet, I continued to work for him."
Outraged by this kind of disclosure, a friend of mine phoned me and asked whether Lawyers are allowed to reveal information shared in confidence by their clients just like Cohen.
The lawyer's duty of confidentiality requires a lawyer not to disclose or divulge any information obtained or acquired as a result of his or her acting on behalf of a client except where this becomes necessary in the conduct of the affairs of that client, or otherwise required by law.
The lawyer's privilege on the other hand is the evidential principle that the communication between a lawyer and client is privileged and therefore a lawyer, though competent cannot be compelled to testify against or adduce evidence concerning his or her communication with a client.
Confidentiality is the bedrock of any Lawyer-client relationship. No client, after full disclosure of information to his Lawyer, wants to find it in the public domain without consent.
Is this duty absolute? In the face of technological advances, is your privileged information safe? Where does this duty start or stop? Is it worth your salt anyway seeing that you have never hired a Lawyer.
Imagine representing a man who is a suspect in a murder case. The man tells you that he did in fact kill the missing person. He further discloses the location of the body. Meanwhile, family members are searching desperately for the person your client killed. There is even a monetary reward for disclosing this information. What do you do? Is it right to leave the family members searching for the loved one well knowing that they are dead? Is it right to remain silent and keep the duty of confidentiality? Is it your duty to announce his guilt anyway?
This above scenario shows the complexity of this particular duty and privilege in real life situations. This in fact informs the general public perception that Lawyers are liars.
To answer my friend and many out there, the duty of confidentiality is not absolute.
The Hornet's nest is in the words "except where this becomes necessary in the conduct of the affairs of that client, or otherwise required by law."
The first exception concerning necessity only applies in situations where the lawyer is acting in furtherance of the affairs of the client. The second exception is when law expressly requires the disclosure.
Where a client is misleading Court, waives or consents to disclosure, brings a criminal, civil or disciplinary action against his Lawyer, or uses legal advice to accomplish a criminal or fraudulent act, a Lawyer is not mandated to uphold the duty of confidentiality.
Today, we are faced with other emerging challenges that may compromise the duty of confidentiality.
Electronic forms of communication have come to the fore in legal practice. Email is fast replacing letters as a dominant means of lawyer-client communication.
However, issues of security in electronic communication can undermine a Lawyer's ability and ethical duty to protect his or her confidential information. Cyber security is paramount now more than ever for all legal practitioners.
In the context of corporate clients, who does the lawyer share or not share confidential information with? Our Courts have not yet been asked to answer this question but in the United States, the U.S. Supreme Court in Upjohn Co. V United States rejected what initially used to be called the "control group test" and expanded the scope of the attorney-client privilege in the corporate context to include communications with non-management employees.
Those communications must be within the scope of the employees' corporate duties and the employees themselves have to be sufficiently aware that communications were conducted so that the corporation could obtain legal advice.
What about "In house" counsel employed by a company on a fulltime basis to serve legal functions for the company. If their work and communication is to adhere to the duty of confidentiality, it affects how they interface with other employees and how they do their work. This especially is a grey area and a potential area for conflict in Uganda.
The European Court of Justice has pronounced itself on this issue and said attorney-client privilege is only justified when a lawyer is independent from the client and invariably doesn't apply to "In house counsel".
Uganda is home to another serious challenge to the lawyer-client confidentiality: the abuse of public power.
In 2016, a law firm in Uganda was the target of a police raid seeking evidence pertaining to a client in police custody.
Time and again, we have seen allegations of wiretapping and the monitoring of electronic communications. Lawyers must be extremely vigilant in such an environment.
As Justice Ogoola once wrote, "the lawyer, like a centipede, is a multifaceted creature endowed with many constituent moving parts – all working in complex synchronisation and harmony".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.