Client instructs solicitor to withhold and delete a damaging disclosable document (Code 1.4 and 2.1)
Hannah Adeyemi, a solicitor, acts for the claimant, Orbis Packaging Ltd, in a multi-track breach of contract claim in the County Court. The court has ordered standard disclosure under CPR Part 31. The client's managing director shows Hannah an internal email in which one of its directors admits that the goods in dispute were damaged in Orbis's own warehouse. The email falls within standard disclosure and is not privileged. The managing director instructs Hannah to leave it out of the list of documents and says he will delete it from the company's server that evening.
What should Hannah do?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: Advise the client that the email must be disclosed and must not be destroyed, and cease to act if the client refuses to allow proper disclosure.
THE RULE TO REMEMBER
A solicitor must not mislead the court or be complicit in a client withholding or destroying disclosable evidence; if the client refuses to give proper disclosure after advice, the solicitor must cease to act.
Client instructs solicitor to withhold and delete a damaging disclosable document (Code 1.4 and 2.1)
Paragraph 1.4 of the Code prohibits a solicitor from misleading the court or others, either by her own acts or omissions or by allowing or being complicit in the acts or omissions of her client. Paragraph 2.1 prohibits misusing or tampering with evidence or attempting to do so. The email is within standard disclosure, so leaving it off the list of documents would give the court and the defendant a misleading picture. Deleting it would be tampering with evidence. Hannah must explain to the managing director that the company is obliged to disclose the email and must preserve it, and warn of the consequences of not doing so. She must keep the client's affairs confidential (para 6.3), so she should not reveal the email herself without the client's consent. If the client still refuses to give proper disclosure, she cannot continue: the SRA's paper on balancing duties in litigation says that if a client continues to mislead despite advice, the solicitor should cease to act. Her duties to the court and the administration of justice (Principle 1) take precedence over the client's wishes.
Why B is wrong: Confidentiality does not permit a solicitor to take part in withholding a disclosable document; doing so would mislead the court and the other side.
Why C is wrong: A list of documents that knowingly omits the email misleads the court and the opponent; a vague remark to the judge does not cure that.
Why D is wrong: She cannot unilaterally disclose her client's confidential documents; her proper course is to advise the client and, if it refuses, to stop acting.
Why E is wrong: A pre-existing internal business email does not become privileged merely because it is later shown to a lawyer.
A little more practice done.
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