Broadly speaking, the Bar Council advises that the use of counsels’ advice by solicitors in this way may be inappropriate, for five principal reasons: (1) it may give rise to a breach of client confidentiality (2) where documents disclosed during the course of litigation are concerned, it may give rise to a breach of the implied undertaking prohibiting collateral use of documents obtained during the disclosure process (3) it may give rise to a breach of copyright (4) it may give rise to negligence liability to persons other than the client and (5) counsel’s professional indemnity insurance may not provide cover against liability arising from multiple use of such advice.
The Bar Council advises barristers that blanket approval to the incorporation of advice and opinions in knowledge management systems should never be given. Moreover, in each case where it is suggested (or possibly suspected) that instructing solicitors wish to incorporate advice within their KM system, at the very least, counsel must ensure that the lay client’s consent is obtained, that there is no possible breach of the implied undertaking as to the use of documents obtained on discovery, and that no further liability will attach to counsel.
The Bar Council suggests that a standard paragraph might be added to all written work, incorporating a suitable disclaimer or limitation of liability clause and a condition that the document may only be lodged in the database once express permission has been granted by the barrister concerned. Curiously, the Bar Council does not suggest that the standard paragraph includes reference to obtaining the lay client’s consent, but perhaps this is implicit in the suggestion that counsel should give permission – if the guidelines are followed, counsel could not give permission without the lay client’s consent.
These guidelines may come as something of an unwelcome surprise to solicitors’ firms, particularly as counsels’ advices and opinions can be useful sources of legal advice and research of general application. However, the motivation behind them is based on the protection of client confidence and privilege, which are certainly threatened by knowledge management proposals on such a wide scale. It is likely that individual barristers, solicitors and clients will reach accommodations concerning this issue, but the Bar Council guidance is a timely reminder that client confidence is at the heart of the legal relationship and should not be overridden simply because of the availability of technology.