ALL LAWYERS ARE AWARE OF the duty of confidentiality. It is one of the most fundamental and important duties that lawyers owe to their clients. Another fundamental duty is the duty to avoid conflicts of interest (for a discussion about conflicts of interest, see China Business Law Journal, volume 1 issue 4: Cases, matters and conflicts of interest). What is the legal source of the duty of confidentiality and what are its boundaries – in particular, when are lawyers permitted or required to disclose confidential information? This column examines these questions in relation to common law jurisdictions and China.
COMMON LAW JURISDICTIONS
The policy rationale for imposing a duty of confidentiality on lawyers is easy to understand: clients would not be willing to share confidential information if they were not confident that their lawyers would protect confidentiality. Similar duties arise on the part of doctors and banks.
Without a duty of confidentiality on the part of lawyers, the right of citizens to have access to confidential legal advice would be compromised. This is of particular importance in the context of legal professional privilege, which refers to the right of a client to prevent the disclosure of legal advice and legal communications, whether during the course of legal proceedings or otherwise, except where privilege is expressly overridden by the law or by a court order (for a discussion about legal professional privilege, see China Business Law Journal, volume 4 issue 9: Privilege).
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.