There can be no doubt that the duty of confidentiality is a central duty for solicitors. JK Rowling appears to have been outed as the writer of a crime novel written under a pen name as a result of a partner in her law firm telling his wife who told a friend who… ….well it made it into the Sunday Times. As my ten year old daughter used to say, when she was younger: oopsie. David Allen Green has blogged on civil liability here. His basic point is on the facts as known there is not likely to be any loss to compensate. The matter is also an interesting sideline in the right to be forgotten debate, with a little side of celebrity intrusion to it.
Lawyerly reaction to the news, insofar as twitter is a gauge, has been a mixture of incredulity and empathy: they see it as a stupid and clear breach; damaging to the firm’s (and lawyers) reputation but also recognising, I suspect, the human temptation to gossip and show off. Lawyers are human and some are more human than others. I too felt both empathy and incredulity; but felt – some may say harshly – that any empathy for ego- or vanity-driven gossiping has to be short lived. And whilst the firm in question has according to the BBC report fessed up with admirable clarity, there is some rather unbecoming blame shifting or sharing. This is taken from that BBC story:
Russells Solicitors said it apologised “unreservedly”.
In a statement, it said the wife of one of its partners… …had told her best friend… that Robert Galbraith was really Rowling.
The company said it was revealed “during a private conversation” adding “the disclosure was made in confidence to someone he trusted implicitly”.
…Russells continued: “Whilst accepting [Gossage's] own culpability, the disclosure was made in confidence to someone he trusted implicitly. On becoming aware of the circumstances, we immediately notified JK Rowling’s agent.”
For me there are two interesting questions. One is what will Mr Gossage’s regulator do (the Solicitors’ Regulation Authority, SRA)? And the other equally or more important, and it may shape the SRA’s response, is what should Russell’s do? It is not simply, as the fashion has it, a matter of reputation management. They almost certainly have to report the matter to the SRA as a material breach of their professional obligations. They have a moment where they have to consider their ethical obligations as a firm. They have to show their staff and their regulator that they take ethical obligations seriously. Whilst I would not advocate overreaction, saying sorry and blaming the Missus and her mate is probably not enough.
What will the SRA do? My guess is JK Rowling will not bother to report the firm to the SRA. Whether she does or not they will need to consider the matter because of the material breach report. I wonder what their response will be. Under the new risk based regime, the SRA does not investigate every case it receives. Cases have to be serious enough to merit investigation and sanction. I’ve got misgivings about that approach, ignoring small breaches may breed ethical relativism (the broken windows theory of crime translated into ethics if you like). The SRA’s risk based approach makes me wonder how they’d react. Does this one breach represent a serious enough problem for them to act?
Breach of confidentiality is prima facie serious. The practical and economic repercussions of the lawyer cocking up for the lawyer and his firm may be regarded as serious punishment in itself. The firm will make the case that it has learnt its lesson (and perhaps meted out its own punishment and/or corrective responses beyond their current she can’t be much of a best friend strategy). That there is no economic loss to the client reduces its seriousness but being denied the pleasure of anonymous publication JK Rowling regards as important and who are we to disagree: its value is incalculably small or large, genuinely incommensurable with money.
The SRA certainly can reprimand or fine the solicitor (assuming they support the view that there has been a breach) and they could conceivably refer him to the Solicitors Disciplinary Tribunal for more serious sanction (an overreaction I’d say at an instinctive level; but they’d want to be consistent with other breach of confidence cases). The circumstances in which the SRA may make a disciplinary decision are here. The breach of conduct rules appears capable of punishment because it was:
- deliberate or reckless; or caused or had the potential to cause loss or significant inconvenience to any other person; or affected or had the potential to affect a substantial, high-value or high-profile matter;
- punishment is a proportionate outcome in the public interest (it is difficult to see, for instance, how a written rebuke, would be disproportionate in the circumstances, so the question would be whether it more onerous punishment was warranted if the SRA decided to go further); and,
- the act or omission by the regulated person which gives rise to the SRA finding is neither trivial nor justifiably inadvertent.
The SRA might say, we have more important regulatory matters to attend to and not sanction him. They might say this is a one off, and suggest there is no continuing or serious risk. It might feel a bit like a there but for the grace of God argument. Or a triviality argument. I do not buy that. Some lawyers gossip about juicy cases, and they know they shouldn’t. As Tom Kilroy has noted, there is also much casual treatment of confidential information on trains (information that can be read from others laptops, confidential conversations on mobile phones). In my view the SRA should act, investigate and if the allegation is proven, punish. I don’t think it needs anything heavy handed. I am sure the Partner is mortified, but the initial response of his firm does suggest a bit of blame shifting which they and if not they, the SRA, need to tackle. The sanction in the circumstances need not be great but regulators need to deal with moments such as these and send signals. It is how cultures are set. Toleration of confidential breaches, gossip (if that IS what has happened) needs to be frowned upon and acted upon.