“Secret” communications in family proceedings

“Secret” communications in family proceedings

Lawyers are bound by a strict code of professional ethics. Any breach of this code could result in serious sanctions which, in the worst case, mean that the lawyer cannot continue to practise or do so only under conditions, such as supervision.

The professional code for lawyers

A lawyer’s duty is to do the best possible for the client. However, that duty is not unconditional. A lawyer must never act outside the law and must not say or do anything which the lawyer knows is not true or mislead the client, the court or the other party to the court proceedings. In addition, a lawyer must always be entirely straightforward towards the client.

“Secret” communications from third parties

The professional code of ethics, the requirement for honesty can sometimes give a lawyer a professional dilemma. Take the example of so called “secret” communications.

It is not unknown for a family lawyer to receive a communication, by post or online, the contents of which the writer says should not be communicated by the lawyer to anyone else. For example, the communication might make an accusation about the lawyer’s client or a third party, or say something about a child whose future is subject to court proceedings. The communication might even allege that someone, perhaps the lawyer’s client, has committed a criminal offence.

The basic rule is that a family lawyer receiving such a communication is obliged, given the duty of straightforwardness towards the client, to tell the client about it. It is very unlikely that the lawyer will know whether or not an allegation of criminal behaviour is true, unless the client has admitted it to the lawyer.

“Secret” communications from client to lawyer

It sometimes happens that a client will say something amounting to an admission to a family lawyer and then ask the lawyer to make a formal denial about the admission or to keep it secret. The admission might be about something which is immediately relevant to the proceedings, perhaps some form of tax evasion or even something as serious as a sexual offence against a child involved in the proceedings.

In that case, the lawyer, knowing that the client is asking that the other party or the court is to be deliberately misled by a dishonest statement, must refuse to accept those instructions from the client.

The lawyer will also be obliged to advise the client that he/she will have to find a new lawyer. Under no circumstances can a lawyer be a party to a deliberate deceit.

“Secret” communications to the court

It is not unusual for a party involved in court proceedings following the breakdown of a relationship, particularly when not represented by a lawyer, to send a letter to the court specifically asking that the communication be kept confidential. That request is not one that the judge can accept.

The court must act fairly between each of the parties and cannot keep one party in the dark about what the other has said. In a situation such as this, the judge will ask the court staff to send a copy of the communication to the other party, either directly if that other party is not represented or to their lawyers.

Fairness and truthfulness

Our justice system requires lawyers and indeed their clients to behave in a way which is both fair and truthful. Clients who ask their lawyers to breach those requirements will find that they are not successful in their requests. No fair minded person would wish it otherwise.