How can I comply with a Legal Ombudsman investigation without breaching client confidentiality?
“I act for executors in an estate administration. A beneficiary demanded disclosure of documents I’m instructed not to disclose. The beneficiary made a Legal Ombudsman complaint and the investigator has requested the documents. How can I comply without breaching privilege and/or my duty of confidentiality to my clients?
Although beneficiaries are not clients, they may bring complaints to the Legal Ombudsman (LeO).
This can be problematic for the solicitor who acts on behalf of the estate and owes a professional duty of confidentiality to the executors.
Paragraph 7.3 of the SRA’s Code of Conduct for Solicitors and paragraph 3.2 of the SRA Code of Conduct for Firms require solicitors and firms to cooperate with LeO in an open and timely manner.
LeO has the power under the Legal Services Act 2007 to require a party to a complaint to provide documents.
However, under rule 5.22 of LeO’s Scheme Rules, solicitors need not provide information they could not be compelled to provide in civil proceedings before the High Court – namely, information that is covered by legal professional privilege (LPP).
The SRA’s view on information not subject to LPP is set out in its guidance note on confidentiality of client information.
The SRA advises you should write to your client to:
- notify them of LeO’s request, what information they have requested and the basis of LeO's stated authority to request it
- inform them that unless they object, your firm will provide to LeO the information that has been requested
- explain that in the event that your client does object, your firm will notify LeO of this and require LeO to serve your firm a notice under section 147 of the Legal Services Act, which your firm must then comply with
LeO has advised a notice under section 147 overrides any duty of confidentiality that firms may owe to their client(s) although this section does not, of itself, extend to any material covered by LPP.
For more information, see:
Disclaimer
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.
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