Knowledge management

Introduction

Firms of solicitors have expressed interest in holding copies of counsel’s opinions on internal databases or intranets. It is envisaged that these opinions would then be accessible by members of the firm, for the purpose of giving advice in other cases. The PCC and a specially appointed Working Party of the PSC has considered the request and now publishes the following guidance.

There are particular issues which need to be resolved before consenting to the use of opinions on solicitor’s internal databases or intranets. Blanket approval to such use should never be given. Counsel should consider on a document by document basis whether he or she is able to give consent to such use, having regard to the following problems.

a. Breach of confidence
b. Breach of the implied undertaking on disclosure documents
c. Copyright infringement
d. Liability for negligence to persons other than the client.
e. Lack of insurance cover.

1. Breach of Confidence

The client/solicitor/counsel relationship is a confidential one; indeed in many cases the fact that the client has even sought advice will be confidential. Neither solicitor nor counsel may make use of confidential information provided to them by the lay client other than for purposes which are necessary for the carrying out of the lay client’s instructions. The placing of an opinion on the internal database of a firm of solicitors is not necessary for the purpose of carrying out the clients’ instructions. Counsel is not in a position to authorise such use without his or her lay clients consent.

2. Breach of Implied Undertaking

A special situation arises where during the course of litigation, an opinion has been written, where documents have been disclosed by the opposing side. If these documents are referred to in the opinion, use on an internal database could well be a breach of the implied undertaking to make use of those documents only for the purposes of the action in which they were disclosed.

3. Copyright

Counsel, as author of the opinion is undoubtedly the legal owner of the copyright in it. Equally clearly, the client has, at least, a licence to make copies of the opinion for his or her own use and the solicitor has an implied licence to copy the opinion for that particular client’s purposes. Counsel can refuse permission to his or her instructing solicitor to make copies of an opinion for use on an electronic database on the grounds that to do so would be an infringement of his/her copyright. Consideration should also be given to whether the client may have a possible claim for copyright in the material in the opinion, e.g. if the opinion included any material belonging to the client. Unless counsel has satisfied him/herself that the client has no possible claim to copyright in the material, he/she should always obtain his/her client’s consent to the use.

4. Liability for negligence to persons other than the client

If the opinion is placed on the database without counsel's knowledge or consent, it seems likely that he/she would not be liable for any consequences of its misuse. However if counsel has consented to such use, such consent should be given expressly on the basis that no further liability (beyond that of the original client) is incurred. It would be prudent to ensure that each stored opinion carries a disclaimer to that effect.

5. Insurance

Before agreeing to use of the opinions on a database counsel needs to be sure that the extent of his/her cover is adequate for the potential liability arising from multiple uses of opinions or other documents. Counsel should ensure that if such cover is not clearly spelled out in the insurance policy, a letter is obtained from the insurers covering the position.

6. Conclusion

Whilst many of the Bar may wish to try to cooperate with solicitors in a scheme for the placing of his/her opinions on a database, there are certain issues that will need to be carefully considered and resolved before doing so. Counsel should only embark on this course of action after considering the position of the opinion in question under each of the above heads. If the decision is to participate, then counsel should ensure at the very least that:

a. The client’s consent is obtained.
b. There would be no beach of the implied undertaking.
c. There would be no further liability

Counsel and chambers may wish to consider drafting a standard paragraph to be inserted into every opinion or advice indicating that counsels’ liability is limited to the client for whom the advice was sought in the particular set of circumstances disclosed. Such a paragraph might also say that the lodging of the opinion on a solicitors database system can only be done once express permission for such use has been granted by counsel.

We have discussed this guidance with the Law Society and they approve its contents. The Law Society’s own guidance on this issue can be viewed at www.lawsociety.org.uk

Professional Standards Committee
November 2005