Question of ethics archive

Important: The guidance below was written and issued before the introduction of the SRA Handbook on 6 October 2011, and may refer to regulatory material that is no longer in effect. Although it may still be relevant, this guidance has not been rewritten in light of the wide-ranging regulatory changes implemented on 6 October 2011. Accordingly, it has been archived.

November 2009

Joint retainer; one client subsequently asking for file

Q. We acted last year for a husband and wife in buying a small business as partners. They are now divorcing and the wife has asked us to forward the file to her accountant. Can we do this?

In a joint retainer, both parties will own the client papers. You cannot therefore hand the file to one of the joint clients without the consent of the other, although both clients are entitled to a copy of the papers at their own expense. Moreover, in a joint retainer, you cannot disclose confidential information to a third party without the consent of both clients. Whilst you could therefore send the file (or a copy of the file) to the wife, you cannot send it to her accountant unless the husband agrees to this—see rule 4, guidance note 5 of the Code.

Conflict: acting for one spouse having previously acted for both

Q. We acted for a husband and wife two years ago in the sale and purchase of the matrimonial home. The husband now wishes to instruct us in connection with their divorce. Can we do this? 

If your previous retainer was a joint retainer, then this alone would not prevent you from now acting for the husband, since none of the information from the joint retainer is confidential as between the parties – see rule 4, guidance note 5 of the Code. However, if you have acted for the wife in another matter, or she gave you confidential information outside the joint retainer, then you will need to consider whether any of the information you acquired as a result might reasonably be expected to become material in the divorce proceedings. If so, then rule 4.03 prevents you from acting for the husband. Generally, it would not be appropriate in these circumstances to act for the husband even with an information barrier, since this is largely intended for sophisticated clients in commercial transactions.

"Solicitor of the Senior Courts" replacing "Solicitor of the Supreme Court"

Q. I saw recently that the title "Solicitor of the Supreme Court" has been replaced by the title "Solicitor of the Senior Courts". Does the new title apply to all solicitors, or only those admitted after the change was introduced?

The new title "Solicitor of the Senior Courts" (or in an international context "solicitor of the Senior Courts of England and Wales"), applies to all solicitors since 1 October 2009, irrespective of when you were admitted.