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Should the Lawyer's Duty to Keep Confidences Override the Duty to Disclose Material Information to a Client?

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Abstract:

Where the lawyer holds information that is significant and material to a client's retainer, the information must be disclosed. This duty is often recognised as a matter of law, but it also should be recognised as a professional duty. Where this duty conflicts with confidentiality or the duty to act in another client's best interests, neither obligation should be considered to “trump” or override the other. Waiver of the right to disclosure may be permitted with informed consent, but such informed consent will seldom be established. In all other cases, the lawyer should withdraw. Lawyers must never recommend waiver when it is not in the client's interests.

The professional rules of New Zealand, Europe, the United States, Australia, Canada and England and Wales were considered. No single jurisdiction follows the recommendations of this article with respect to both the treatment of disclosure, and the treatment of conflicts between disclosure and other duties. Although England/Wales seems to subordinate disclosure to confidentiality, careful consideration of its rules and guidance notes suggests that its approach is not dissimilar to New Zealand's. New Zealand was right not to subordinate the duty to disclose. Other jurisdictions should follow its example.

Keywords: COMPARISON; CONFIDENTIALITY; CONFLICT; CONFLICT OF INTEREST; DISCLOSURE; DISCLOSURE OF MATERIAL FACTS; INTERNATIONAL; RULES

Document Type: Research Article

Publication date: December 1, 2009

More about this publication?
  • Legal Ethics is an international and interdisciplinary journal devoted to the field of legal ethics.
    The journal provides an intellectual meeting ground for academic lawyers, practitioners and policy-makers to debate developments shaping the ethics of law and its practice at the micro and macro levels.
    Its focus is broad enough to encompass empirical research on the ethics and conduct of the legal professions and judiciary, studies of legal ethics education and moral development, ethics development in contemporary professional practice, the ethical responsibilities of law schools, professional bodies and government, and jurisprudential or wider philosophical reflections on law as an ethical system and on the moral obligations of individual lawyers.
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