The Bus Company's Internal Report
You are a junior counsel. On 4 February 2024 you are briefed by solicitor Ms A for the plaintiff in a High Court personal injuries action arising from a collision on 16 August 2021 with a bus operated by CityBus Ltd. The plaintiff alleges the driver, Mr K, was speeding. The book of pleadings includes an internal CityBus disciplinary report from 2022 which records two prior speeding complaints against Mr K. While reading it, you recognise the report: in November 2023, before this brief, you advised CityBus Ltd (instructed by solicitor Mr B) in a separate employment dispute concerning Mr K's dismissal. Mr B gave you the same report in confidence and you discussed its contents with CityBus's HR director. The employment dispute settled in December 2023. The plaintiff's solicitor does not know about your earlier retainer. The trial is listed for 14 October 2024. The plaintiff's case on liability depends heavily on Mr K's prior record. What do you do?
1. Identify the professional conduct issues raised by your previous retainer and explain what you must do now.
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Your duty of confidentiality to CityBus Ltd survives the end of the employment retainer. The internal report is confidential and material to the new case, because the plaintiff's liability case depends on Mr K's prior record. You must not use that information against CityBus, and you must not risk doing so unconsciously. As a sole practitioner you have no institutional screen; the knowledge is yours. The proper course is to return the brief to Ms A promptly. You should tell her only that you have a conflict of interest and cannot act, without revealing the former client's confidences or the details of the report. You should not discuss the report with the plaintiff. You should also consider whether you can continue to act in any related matter for CityBus; the employment dispute is over, but you should not take fresh instructions from either side in this action. If you are uncertain, seek advice from the Bar Council's ethics committee. The test is whether a reasonable observer would think there is a real risk of misuse of confidential information.
2. The plaintiff's solicitor asks you to 'keep it quiet' and continue, saying the trial is near and no one will know. Can you?
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No. The fact that no one may find out is irrelevant. The Code of Conduct requires you to avoid any conflict of interest and not to misuse confidential information. Continuing would breach your duty to CityBus and could compromise your duty to the plaintiff, because you could not be seen to act impartially. It would also risk misleading the court if the source of the plaintiff's evidence on the driver's record became an issue. You must not be a party to concealment. You should decline firmly and put your reasons in writing to Ms A, without disclosing the confidential material. If Ms A presses you, you should repeat that you cannot act and return the brief. A barrister's duty to the court and to the profession is not displaced by the client's wish to keep the matter quiet.
3. Could you act if CityBus Ltd, after full disclosure, consented?
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Possibly, but consent is not a complete answer. You would need to give CityBus full disclosure of the conflict and obtain informed consent from an appropriate person. You must also be satisfied that there is no significant risk that the confidential information will be used, and that you can act in the plaintiff's best interests. The report is central to the plaintiff's case, so the risk is high. Even with consent, a reasonable observer might conclude that your judgment is tainted. The safer and probably correct course is to decline the brief. If you were to act, you would need to keep the confidential information out of your conduct of the case, which may be impossible. You should not approach CityBus for consent without first considering the plaintiff's position, and you must not disclose the plaintiff's confidences to CityBus. The Bar Council ethics committee can advise.