Acting against a former client
Two years ago, a solicitor acted for Jade in a dispute with her business partner and learned confidential information about Jade's finances. A new client now asks the solicitor's firm to act against Jade in a related claim, where that information would be material.
Which of the following is the best answer?
Show the answer and explanation
The best answer is B: The firm must not act unless effective measures are taken that leave no real risk of disclosure, or Jade gives informed consent, given or evidenced in writing.
The duty of confidentiality continues after a retainer ends. Paragraph 6.5 of the SRA Code of Conduct for Solicitors says you must not act for a client whose interests are adverse to those of a current or former client for whom you hold confidential information material to the matter, unless effective measures have been taken which result in there being no real risk of disclosure, or the former client has given informed consent, given or evidenced in writing.
Option D is too absolute, because the Code allows for those two exceptions. Simply telling the new client (option C) does nothing to protect Jade, and the new client's waiver (option E) is irrelevant, because the information belongs to Jade.