December 20, 2021

Private and Confidential

A court will restrain a legal representative from acting against a former client where there is a significant risk of disclosure or misuse of information that belongs to the former client (Wishart and others v Blieden NO and Others 2013 (6) SA 59 (KZP) @ para 26).

In W.L v Gundelfinger [2021] ZAGPJHC 20, the court held that “[5] A legal representative owes a fiduciary duty to his or her current client to act in their best interests. That duty precludes a legal representative from simultaneously acting for two clients with conflicting interests because the legal representative cannot properly serve both of the clients’ interests at the same time (Wishart op cit @ para [37]). A fiduciary duty exists only while the relationship which gave rise to the duty remains in place. A lawyer’s fiduciary duties to his client terminate when their professional relationship comes to an end”.

The only duty that survives the termination of the legal representative’s mandate is the duty to preserve the confidentiality of information imparted to him through his professional relationship with a former client – see Robinson v Hulsteyn, Feltham and Ford 1925 AD 12 @ para [21] to [22].   There is no absolute rule that precludes a legal representative from acting against a former client – see Wishart (op cit) @para [50]). Where the information (which is the subject of the interdict) has been shared without prejudice discussions, such information is no longer confidential because it has been disclosed – see W.L v Gundelfinger @para [23].

While the risk need not be substantial, it must be a real one, and not merely fanciful or theoretical (C. Hollander QC and S. Salzedo QC, Conflicts of Interest, 5th edition (2011) page 128). The information in question must be identified with precision and not merely in global terms (C. Hollander QC and S. Salzedo QC (op cit) @page 156 to page 158). This requirement is insisted upon even though it may necessitate disclosing to the court the very information the confidentiality of which it is sought to preserve by the action (W.L v Gundelfinger @para [45]). The information described as confidential must have been imparted or received or retained by the legal representative in circumstances that give rise to an obligation of confidence.

“Firstly, in general, it is not sufficient to make a general allegation that a solicitor is in possession of relevant confidential information, some particularity as to the confidential information is required. Secondly, the degree of particularity required depends upon the facts of the particular case. In this regard, the identification of the nature of the matter on which the solicitor was instructed, the length of the period or original retainer, the date of the proposed fresh retainer, and the nature of the subject matter are important factors to be considered. Thirdly, the court attaches weight to the evidence of the solicitor as to his state of knowledge and whether he has received confidential information, in particular where there is no challenge to his integrity and credibility” (W.L v Gundelfinger @para [47]).

Confidential documents and information passing between attorney and client, like any other confidential information communicated to anyone else, subsequently cease to be confidential. The judge also recognized that “it makes common sense that not all confidential information acquired by a legal representative will remain in the mind of the legal representative or be susceptible of being triggered as a recollection after the lapse of a period of time” (W.L v Gundelfinger @para [48]).

The Code of conduct that is prescribed under the Legal Practice Act 28 of 2014 sets out a standard of ethical conduct to be observed by legal practitioners and clause 3.5 of the Code regulates a conflict of interest situation, but does not create a substantive rule of law – see W.L v Gundelfinger (op. cit.) @ para [88].

Please note that our blog posts are informal commentaries on developments in the law at the time of publication and not legal advice.

About the author 

Sipho Nkosi

Sipho Nkosi is an experienced Legal Professional with a demonstrated history of working in the legal services industry. A strong legal professional with a B Proc degree focused in Law from the University of Natal (Howard College), with a keen interest in corporate governance and a profound insight into Compliance Risk Management. Skilled in litigation and procedural law, and an affiliate member of the Compliance Institute Southern Africa.

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