In the jurisdiction of common law, confidentiality obligations require lawyers (or lawyers) to respect the confidentiality of their client's affairs. Information obtained by lawyers about their client's affairs can be kept confidential, and should not be used for the benefit of persons not authorized by the client. Confidentiality is a prerequisite for legal professional rights to hold.
Video Duty of confidentiality
Tugas dan sumbernya
The client-client relationship is historically characterized as one of self-confidence. This assignment is also part of a wider foundation for the fiduciary duty of lawyers for their clients.
Rationale for task
Maintenance of full and honest disclosure between lawyers and their clients is the ultimate justification for confidentiality duties. This premise is utilitarianism, because it works to promote the work of lawyers, who are court officials. This allows the client to freely discuss intimate details without fear that the information can be disclosed to the general public. In turn, public trust in lawyers and the legal system is maintained and promoted. Furthermore, the obligation of confidentiality is a constant reminder to the loyalty attorneys they have to their clients.
Another reason is to protect the human dignity of the client.
In criminal cases, confidentiality is also justified to prevent the use of recognition or recognition of being deceived.
Source of task
This task comes from a combination of contract and equity laws arising from a special relationship between lawyers and clients. A lawyer or solicitor is a client agent under agency law. In the contract, the duty arises from the provisions contained in the punggawa agreement. As complementary, equity prohibits unauthorized use or disclosure of confidential information. In most jurisdictions, the task is codified in the provisions of the legal professional rule, such as the Code of Professional Responsibility Model.
Although the obligations of secrecy and fiduciary duty have the same origins, they can not be equated because not all fiduciary duties withdraw the duty of secrecy and vice versa.
Maps Duty of confidentiality
Job scope
In contract
Because the client's confidentiality obligations are primarily derived from contract law, the words of the term implied in the punggawa agreement determine the scope of its operation. Although important, there are several legal attempts to resolve the extent to which the term is implied.
In equity
In equity, the protection attaches to information that is capable of meeting the confidentiality test - whether the information is publicly known and whether the communication is for limited destinations . Although this test may indicate a more restrictive sphere of secrecy under equity, requiring information to be considered confidential before falling into scope, on another level, equity can secure wider temporal protection for confidential information. The obligation in the contract terminates at the termination of a legal retainer, while duties under the equity remain intact until the information is no longer confidential, which may occur shortly after the expiration of the contract retainer.
In professional rule
The rule of law professionals tends to adopt a broad view of the range of tasks recognized in contract law. The obligation to retain information in confidence, in accordance with professional rules in Australian jurisdiction, is based on its relationship to a legal retainer rather than a source of information. Therefore, the professional rule seems to imply that the information obtained in connection with a legitimate retainer is considered confidential. However, although the rules emphasize the importance of confidentiality, this is not a difficult rule. Not all information linked to the punggawa meets the legal confidentiality test. The credential obligation applies to "any information, which is confidential to the client and obtained by a practitioner [a] or [a] company during client engagement." For lawyers, this is "confidential information obtained by [a] attorney with whom it is concerned."
Compared with legal legal professionals
Although the obligation of secrecy has the same origins, goals, and similarities with legal professional rights, they differ in at least three ways. First, the privilege does not depend on the contractual, equivalent, or professional obligations to the client. Rather, it is based on public policy arguments. Second, communications are protected by more secrecy than those protected by privilege. Communication privileges are part of secret communications. However, the loss of privilege does not automatically automatically undermine the obligation to confidentiality if it arises independently of the privileges. Finally, privileged information is protected from mandatory disclosure, unless otherwise terminated by law or exempted. Confidential information which is not privileged on the other hand shall be disclosed to any other law, regulation or coercion. In particular, the public interest in discovering the truth overwhelms the personal task of honoring trust.
Limits and exceptions for task
Although the obligation for confidentiality is often stated in absolute terms in professional rules, there are circumstances in which tasks can be violated. Violations of duty in certain contexts are justified through a balancing of the often competing interests of clients and proper judicial administration.
Because client-client secrecy exists for the client's benefit, self-confidence is the client to rule out or modify. Therefore, lawyers may disclose confidential information to third parties in which the client allows such an action. However, the consent to allow disclosure of confidential information does not entitle the attorney to disclose or use the information for purposes other than those specified by the client.
Authorizations do not have to be explicit. This can be inferred from the terms or nature of the punggawa agreement. The idea that all information conveyed in a punggawa is confidential is impractical. Often, much of that information is communicated so it can be expressed to remove any problems, claims, or legal issues. Therefore, if the information is incidental to the behavior of a retainer, client authorization can generally be regarded as granted. However, if there is uncertainty, a clear authority must be sought from the client.
Legal forced disclosure
If explicitly regulated in law, lawyers must comply with parliamentary requirements requiring breach of liability for confidentiality. Mr. Denning at Parry-Jones v Law Society says on 6-7:
- "the lawyer must obey the law, and, in particular, he must comply with the rules made under the law's authority for the conduct of the profession.If the rules require him to disclose his client's affairs then he must do so." >
The mandatory abrogation of the task is limited in scope and purpose. The requirement never covers the decision for disclosure of confidential information. Instead they are based on upholding the public interest, in which the interests override the interests of the client in maintaining confidentiality.
Disclosure ostensibly to support the interests of their own lawyers
Lawyers may disclose confidential information relating to a retainer in which they attempt to collect payments for the services rendered. This is justified on the basis of policy. If the lawyer can not disclose the information, many will do legal work only when payment is made in advance. This can negatively affect public access to justice.
Lawyers may also violate the duties in which they defend themselves against disciplinary or legal proceedings. A client who initiates trial proceedings against a lawyer effectively waives the right to confidentiality. This is justified on the basis of procedural justice - lawyers who can not disclose information related to a retainer will not be able to defend themselves against such action.
Disclosure of non-confidential information
Obviously, non-confidential information does not fall under the obligation of confidentiality. Disclosure of information that already exists in the public domain does not violate the obligation. Furthermore, information that is not in public knowledge at retirement agreement, is not subject to duty if it then enters the public domain. Goals served by keeping trust - client protection - get put out.
Nonetheless, lawyers still have loyalty obligations, and clients may feel betrayed if the information is disclosed, even if it becomes common knowledge. Although there are no legal consequences for disclosure, the discretion on the part of the lawyer may be in the long-term interest of maintaining the courtesy of the legal profession.
Disclosure for the purpose of testament
Another case is the will of the will and last will. Previously a secret communication between lawyer and heir is no longer a secret for the purpose of proving Will is the intention of the deceased dead person. In many instances, the will, codicil, or other part of the housing plan requires explanation or interpretation through other evidence (extrinsic evidence), such as a file of attorney's files or correspondence from the client.
In certain cases, the client may wish or approve the disclosure of personal or family secrets only after his death; for example, Will might leave a legacy to a lover or natural child.
References
- Dal Pont, G.E. (2006) Professional Lawyer's Responsibility , Thomson Lawbook Co., 3rd ed., Pp 227-240.
Footnote
See also
- Legal ethics
- Cyber-client privilege (United States Legal Terms)
- Client privileges (Commonwealth Legal Terms)
Source of the article : Wikipedia
0 Comments