GUIDELINES: firms need consent to put counsel's opinions on internal systems

Solicitors putting counsel's opinions on their internal know-how systems should be careful not to breach copyright law, guidance has warned.

Guidelines launched last month by the Law Society emphasise the need to obtain consent from clients and barristers before storing counsel's opinions on a system where they can be accessed by the firm as a whole.

A spokeswoman for the Society's strategic policy directorate said: 'This has become a particularly pressing issue with the growth of IT-based systems and the Bar Council's decision to notify heads of chambers of its views on the subject.'

The council warned barristers earlier this year against a potential breach of copyright or client confidence if their opinions are placed on solicitors' internal databases or intranets.

The copyright of a counsel's opinion lies with the barrister who authored it.

But the Society's guidance indicates that, with certain precautions, solicitors may store, and where appropriate reuse, counsel's opinions without breaching the law or their duties towards clients.

The guidelines were drawn up with the assistance of Catriona Smith, head of the intellectual property litigation group at City firm Allen & Overy, and Carol Shutkever, a partner at City firm Herbert Smith, with input from other firms.

The guidance advises solicitors to use their letters of engagement to seek clients' permission to store opinions.

It suggests giving barristers an opt-out clause in their instructions, stating that their opinion will be stored by the firm, with due regard to client confidentiality and data protection, unless the barrister refuses consent.

Client confidentiality will not be breached by placing opinions on an internal knowledge system, the guidance says, provided the information can only be accessed by staff and there are adequate security standards in place.

Exceptions apply where information is particularly sensitive or where the firm has Chinese walls in place to deal with a conflict issue.

Where counsel's opinions are reused, the barrister will not be responsible in negligence for the reuse.

LINKS: www.lawsociety.org.uk

Rachel Rothwell