Is a Professional's Duty of Confidentiality Only To The Client?

Is a Professional’s Duty of Confidentiality Only To The Client?

It is at the heart of the solicitors’ and other professionals’ practice that confidentiality be maintained in relation to information imparted by the client.  Such an obligation is implied in the contract between the professional and the client.
But what of a situation where a third party has given confidential information to a client and which is in turn passed on by the client to the professional?  Does the professional have any obligation to that third party, with whom the professional has no contractual relationship?
The liability of a person who becomes aware of confidential information, but is not bound by any contract or undertaking of confidentiality, was dealt with by Keane J in Oblique Financial Services Limited -v- The Promise Production Company (1994.)
In that case the court held the duty of confidentiality in relation to information would be of little value, if the third parties to whom this information had been communicated were at liberty to publish it to another party, or without the court being in a position to intervene.
The 2007 Supreme Court decision in Mahon -v- Post Publications also dealt with the issue. That was a case where the Planning Tribunal asked the court to hold that it had power to require the documents, which it circulated prior to public hearing, to be treated as confidential and to make orders restraining the Business Post from publishing those documents.
Fennelly J considered the UK and Irish cases.  In summary he was of the view that a court  could protect a confidence in the following circumstances:-

  1. The information must in fact be confidential or secret:
  2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence on the person receiving it;
  3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.

It is clear that we must not only keep our client’s secrets, but we may keep other people’s secrets as well.
This is an edited version of an article by Paul Keane that appeared in the Law Society Gazette in May 2013

Paul Keane
Author: Paul Keane