The same would go if your adviser was a claims consultant or expert adviser. None of that applies to barristers. The bar has long since adopted "Chinese walls". I will come back to this bit of bricklaying. More tricky, though, is when you learn that the solicitor you engaged to settle a squabble last year is working for your ex-opponent this year.
The solicitor, or consultant, or expert, no longer has a conflict of interest, as you are no longer his client. But there is a continuing and everlasting duty to you to preserve confidentiality of information imparted while you were a client. Even then, imagine how you would feel if your previous solicitor was working for the Inland Revenue.
Alternatively, it may be that your previous solicitor represented you as main contractor against the employer but is now attacking you on behalf of a subcontractor on the same job. It is all very well to say glibly "This fellow has an everlasting duty of confidentiality over my information", but you might still prefer him to stop working for his latest client. Can you put a stop to a solicitor working for someone else, once he stops working for you? A recent House of Lords case has been exploring this: Prince Jefri Bolkiah vs KPMG. Between 1996 and 1998, KPMG carried out investigative work for Prince Jefri, younger brother of the Sultan of Brunei, but then it began investigative work for the Brunei Investment Agency. Snag is, this agency had interests "highly adverse" to those of the prince, so the prince wanted KPMG to stop working for the agency. It refused to give up this lucrative appointment, so the prince came to the English High Court to claim an injunction to stop KPMG in its tracks. The first judge said stop, the next three said continue and the final five said stop.
So, if you suspect a previous adviser to be working for someone who might attack you, we have some excellent guidance on the obtaining of an injunction. The court can intervene to protect your confidential information. These advisers are under an unqualified duty to keep the information confidential; there is to be no communication with any third party, or use made of that information.
So, if you suspect a previous adviser to be working for someone who might attack you we have some excellent guidance
The real problem is that no matter how well-meaning and careful the adviser is, there is always the danger of inadvertent disclosure. The obligation on the adviser, therefore, extends beyond merely not exposing information to removing any avoidable risk of disclosure. To ensure this, permanent arrangements must be in place to prevent the leakage of information from one part of the business to another.
Seven years ago the Law Commission said that Chinese walls required the physical separation of departments, including separate dining arrangements. It also required continuing education on confidentiality, strict procedures to prevent the wall being crossed, monitoring of compliance and, finally, disciplinary sanctions where the wall has been breached.
KPMG argued that firms like it were familiar with the obligations implied by client confidentiality. It had different people doing work in a secure office in a different building. Not enough, said the House of Lords. On this occasion, the Chinese wall was ad hoc rather than permanent.
The House of Lords, in reaching its judgment, highlighted the difficulty of preventing unwitting disclosure of information. It also underlined the point that placing an information barrier between members drawn from the same department and accustomed to working with one another created a particular difficulty in litigation support services.
