Since the Insolvency Act 1986 was passed, the extent to which it entitles a trustee in bankruptcy to obtain documents from a bankrupt's former solicitor has been a matter of debate.

Para 12 of the commentary on principle 12.04 in the 1990 edition of the Guide to the Professional Conduct of Solicitors set out guidance on the point.

This was reviewed by the Law Society in the course of preparing the 1993 edition of the guide, when it was concluded that the guidance was incorrect.

A revised version is set out in para 12 of the commentary on principle 16.04 in the new guide.

However, I believe that the commentary is still not entirely correct.

There is as yet no judicial guidance on the issue.

Until such time as there is, I believe that the view put forward in this article reflects the better view on this aspect of the law.The point in issue is the Act's effect on privilege.

In order to decide what this is, it is necessary to look at how the Act's provisions affect both the relationship between a bankrupt and his or her trustee in bankruptcy, and also that between the bankrupt's solicitor, or former solicitor, and the trustee.

The relevant sections are ss.311, 312, 349, 365, 366 and 367.

S.291 is perhaps also material, though indirectly, as it applies to official receivers, not trustees.S.312 is perhaps the best place to begin.

Subs (3) of the section requires 'any banker or age nt of the bankrupt or any other person who holds any property to the account of, or for, the bankrupt [to]...deliver to the trustee...all property in his possession or under his control which forms part of the bankrupt's estate...' The sanction for failure to comply is serious: contempt of court and possible future criminal penalty as well.The wording of subs (3) gives rise to these questions: (a) What is 'property' for this purpose? The use of the term at various places in the Act is inconsistent.

S.436 of the Act defines the term very widely to include 'money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest...arising out of, or incidental to, property'.However, s.311(1) treats 'books, papers and other records' as something separate from other things forming part of the bankrupt's estate, and so does s.312(2) which refers to 'any property, books, papers or other records'.It seems likely, however, that a court would regard 'property' as including 'books, papers and records' for the purposes of s.312(3).

Even if it were to take the opposite view, ss.365 and 367 seem to give clear means by which a trustee can obtain possession of them.(b) S.312(3) applies only to property which is part of the bankrupt's estate.

This would clearly exclude books, papers etc in the possession of a solicitor, which did not belong to the bankrupt.There are differing views about which parts of a solicitor's file belong to the solicitor and which to the client.

However, the safer view seems to be that, once the client has paid the solicitor's bill, the client is entitled to the whole of the file, apart from any papers which the solicitor has brought into being for his or her own use and for which he or she has not charged the client.It is perhaps worth pointing out that s.349 makes any lien or other right to retain possession of 'books, papers or other records of a bankrupt' unenforceable against the trustee.

However, it makes an exception for documents of title held 'as such'.

For the meaning of this phrase, see Re SEIL Trade Finance Ltd [1992] BCC 538.The next question is what effect have the Act's disclosure provisions on privilege? It is on this issue that I disagree with what is said in both the 1990 and 1993 guides.The most important provision in considering the question is s.311(1) which imposes on a trustee in bankruptcy a duty to take possession of all 'books, papers and other records which relate to the bankrupt's estate' - 'including any which would be privileged from disclosure in any proceedings'.There is a curious inconsistency between the Act's provisions which relate to the powers and obligations as between bankrupts and official receivers, and the equivalents which deal with bankrupts and trustees in bankruptcy.

S.291 which imposes on the bankrupt an obligation to deliver to the official receiver 'books, papers and other records' contains a privilege override - 'including any which would be privileged from disclosure'.

S.313, requiring a bankrupt to deliver the same things to a trustee, does not.

Contrarily, though, as we have seen, a trustee's duty to take possession of 'books...' etc (s.311) includes a privilege override, the equivalent official receiver's duty, set out in ss.287 and 289, does not.It seems probable, however, that the inconsistency is due simply to untidy drafting and that no particular significance should be read into it.The question is therefore: how far is the privilege override intended to extend as to commun ications which would otherwise be privileged from disclosure? Is it intended that no privilege should exist as to any matter whatsoever relating to the bankrupt? There are no qualifications to s.311(1) and it could therefore be read as having this effect, as the author of the guide seems to have done - the guide states simply that a solicitor's obligation to deliver up papers to the trustee 'includes privileged communications'.However, I do not believe that it was the intention of either the Act's draftsman or Parliament that a bankrupt should, solely by reason of becoming bankrupt, lose the protection which privilege is designed to give in relation to all his or her affairs, nor that a court would interpret the provisions so widely.I suggest that a distinction must be drawn between communications containing information about the bankrupt's affairs, which the trustee needs in order to carry out his or her functions properly, and communications containing information which is not essential to the trustee.The words which 'relate to the bankrupt's estate' (s.311(1)) should be interpreted narrowly.

Surely a bankrupt continues to be entitled to privacy for legal advice on matters which are not by any reasonable standard the concern of the trustee, eg advice about a matrimonial dispute not involving property; and also for advice in relation to a possible criminal charge (even one arising out of events relevant to the bankruptcy).There is considerable support for this view.

Muir Hunter on Personal Insolvency (para 3-351/6) says: 'The solicitor's position varies according to whether he is asked for information or examined as solicitor to the bankrupt or some other person.

In the case of the bankrupt, the relevant right of privilege must over a great part of its range belong to and be exercisable by the trustee against whom in that area privilege cannot be pleaded.'It is important to note the words 'over a great part', ie not the whole.

The same work says at para 3-223: 'It is...open to question whether s.311(1) would entitle a trustee to obtain from a bankrupt's former, or current, solicitors documents of a character relating to a bankrupt's personal status or to property not falling, or no longer falling, into "the bankrupt's estate" and as such unavailable for the benefit of his creditors.'In Re Konigsberg [1989] 1 WLR 1257, Peter Gibson J said: 'The distinction that is drawn is between the privilege relating to the bankrupt's property divisible amongst his or her creditors, on the one hand, and to property not so divisible, or matters personal to the bankrupt on the other.'Thus, if the information or documents sought by the trustee are not relevant to his or her function - in the first place, to get in the bankrupt's estate - privilege would, where relevant, apply in the normal way (and also perhaps confidentiality) and a court should, and would, not order disclosure.What should a solicitor do, therefore, when asked by the trustee for information, or papers? I suggest that it would be courteous for the solicitor to inform his or her client or former client of the trustee's request before taking any steps to comply with it, even if the solicitor believed the trustee to be entitled to what he or she had asked for.If the bankrupt had no objection to the solicitor's disclosing the information or handing over the papers, obviously the solicitor would be in no difficulty.However, what if the client does object? A solicitor faced with conflicting demands by a trustee and a client should, in the first place, try to arrange fo r the battle to be fought directly between the trustee and the client.

Failing this, he or she might well be justified in requiring the client to provide him or her with sufficient funds to protect him or her against a costs order as a condition of his or her agreeing to resist - though a bankrupt client might not be in a position to do so.It is perhaps worth emphasising that any right to resist a trustee's request for information, papers, or other property on the ground of privilege is that of the bankrupt.

The solicitor can only refuse on behalf of the bankrupt.

Thus it is the bankrupt's responsibility to take any action needed to resist a request.

If the solicitor is unable to get instructions from the bankrupt in spite of having taken all reasonable steps to do so, or the bankrupt is unwilling to take action, it could not be reprehensible for the solicitor to comply with the trustee's request, except perhaps if it was clear beyond doubt that the trustee was not entitled to what he or she was asking for.Ultimately, a solicitor might find him or herself having to take a view on whether the client had an arguable case for refusing disclosure.

In the event of any doubt, the solicitor ought, for his or her own protection, to comply with any reasonable request from the trustee.As the guide points out, an unreasonable refusal by a solicitor to comply with a trustee's request could expose him or her to an adverse costs order.

If, however, the client had a good case, it is unlikely that a court would make a costs order against a solicitor who was obviously acting in the interests of his or her client, particularly if the client was willing to take action to resist the trustee.