Protect yourselves, Society warns
Solicitors who engage in lobbying for clients should be careful to protect themselves against complaints of breach of confidentiality, the Society’s Professional Practice team advises
The Lobbying (Scotland) Act 2016 will fully commence in early 2018. The Act aims to increase the level of public transparency in relation to direct, face-to-face contact between certain individuals or organisations and the Scottish Parliament or Scottish Government (“regulated lobbying”).
The Act is complex: there are details concerning what kinds of activities comprise regulated lobbying, what kinds of lobbyists are required to register, what category of persons are recipients of lobbying activities, what information must be disclosed, and the circumstances under which some may, or may not, be exempt.
Solicitors will want to educate their clients on the provisions of the Act. But the obligations extend to those engaged in lobbying on behalf of another individual or organisation. This will cover solicitors if they lobby on behalf of clients. The registration obligations extend to details of clients, the name of the person lobbied, the date and location of the lobbying, a description of the event or other circumstances in which the lobbying occurred, and the purpose of the lobbying. As such, solicitors who engage in regulated lobbying activities should be aware that, in doing so, they will have to register client information in accordance with the Act’s requirements.
Client information: a quandary
There are lobbying registers in other jurisdictions and there is considerable debate around the issue of whether requiring lawyers to disclose client information on a public register amounts to requiring them to breach client confidentiality. This issue was raised during the passage of the Lobbying Bill through the Scottish Parliament, where one of the Society’s key concerns about the Act related to the obligations to be placed on members in the context of their relationship as legal advisers to their clients.
The Society highlighted the problem in its evidence on the bill, stating: “From the perspective of Scottish solicitor firms who may conduct public affairs work on behalf of clients, solicitors have a duty of confidentiality to protect the identity of their clients. The registration of client details… will breach the Society’s regulations on confidentiality.”
The solicitor/client relationship is founded on the fundamental principles of client confidentiality and legal professional privilege. These tenets occupy the core of the proper administration of the legal system. The position is set out clearly in practice rule B1.6 which states: “You must maintain client confidentiality. This duty is not terminated by the passage of time. You must also supervise your employees to ensure that they keep client matters confidential. Only the client, Acts of the legislature, subordinate legislation or the court can waive or override the duty of confidentiality. The duty does not apply to information about any crime a client indicates they will commit.”
Despite the issue of confidentiality being raised during the passage of the bill through Parliament, there has been no explicit provision included in the Act for confidentiality. As such, a solicitor who fails to disclose information to the register cannot place any reliance, as a defence, on the rules of confidentiality.
Similarly, the Act does not expressly override the privilege, or confidentiality. This means there are no protections for solicitors who are subject to client complaints because they have breached their professional and legal obligations in relation to confidentiality by complying with the Act.
Protection at the outset
So, where does this leave solicitors who carry out regulated lobbying activities?
It is of course the position that clients can waive confidentiality and privilege. This can be expressed in writing, and we suggest that solicitors who are instructed in regulated lobbying activities obtain appropriate waivers from their clients. These should state that the client waives his or her right to confidentiality and privilege in respect of all registration requirements under the Lobbying (Scotland) Act 2016. If the client does not agree to waive confidentiality for these purposes, the solicitor should explain the difficulties in lobbying on his or her behalf and should consider whether to accept the instruction.
If your firm regularly undertakes regulated lobbying work (and you might carry out more of this type of work than you think), your firm should consider including appropriate wording in its letters of engagement – e.g. outlining that the firm will fully comply with the Lobbying (Scotland) Act 2016 and will provide client details and information to the public register where required by legislation. Providing this information within your engagement letters will ensure that the client is in no doubt about the position and will also mean that you will be able to rely on it in the event of a complaint or claim.
Matthew Thomson is a senior solicitor in the Law Society of Scotland’s Professional Practice team