QUESTION OF ETHICS

Q I am a litigation practitioner and I have often found that an 'off the record' conversation with the solicitor on the other side helps to move the case along, which benefits everyone involved.

One of our newly recruited assistants has suggested there is a problem with this even though I always 'clear' it with the other solicitor at the start of the conversation.

Is there really a problem?

A Yes, there is.

You have a professional duty to pass on to your client all information given to you in the course of and relevant to the client's retainer, see Principle 16.06 note 3 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.

This would apply to any such information disclosed to you during an 'off the record' conversation.

The other solicitor would owe the same duty to his or her own client.

The 'off the record' basis of the conversation would not affect the solicitors' duties to their respective clients.

However, there would be conduct implications if either or both solicitors had given what amounted to a professional undertaking not to disclose the information.

The solicitor could face a complaint of breach of undertaking as a consequence of complying with the duty owed to the client.

That possibility would not justify non-disclosure to the client but it does highlight the risks inherent in such a conversation.

Aide MemoireThe new Indemnity Insurance Rules will be effective from 1 September 2000.

Solicitors must have their new indemnity insurance in place by that date.

Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions for publication to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch;tel: 020 7242 1222.