It's criminal on the 07:43 from Woking - why client work should always be strictly confidential

This morning, just by coincidence, two people I follow on Twitter had very similar experiences while commuting on the train. Both saw a fellow passenger working on a laptop. We'll omit the names to protect the guilty, but the laptop-jockeys were lawyers, one of them at a famous magic circle firm. The details of their clients and the matters they were working on were clearly visible to their fellow passengers.

This sparked a light-hearted debate on Twitter about work/life balance. Workaholic lawyers are using their train journeys to finish off those crucial PowerPoint presentations. The phrase 'get a life' was used. But what went through my mind was 'get a grip'. There are serious issues involved.

Anyone who reads my blog regularly will know I am an advocate for normalising legal services, demystifying communications between lawyers and clients and bringing the profession up to date. But there are some things that are too important to compromise.

A fundamental part of what makes a lawyer special is the promise of absolute confidentiality. The public don't understand legal privilege and I'm not sure much of the legal profession do either after Three Rivers.  But they know that, like a priest in a confessional, a lawyer will keep your secrets, so you can tell them everything.

This is true of every branch of the profession, from criminal briefs to in-house lawyers. In my own job, the ability to keep confidences, not most of the time but every single time, is a critical part of the role I perform. To operate effectively as a lawyer, you need to be unimpeachable when it comes to keeping secrets.

Let's just remind ourselves of some black letter rules here. SRA O4.1 states: "You must achieve these outcomes: you keep the affairs of clients confidential unless disclosure is required or permitted by law or the client consents". SRA IB4.2 states "you comply with the law in respect of your fiduciary duties in relation to confidentiality and disclosure".

If your client is a company listed in London, like my own employer, and the matter you're working on is inside information, then there's more. Section 52(2) (b) in Part V of the Criminal Justice Act 1993 states that an individual commits an offence if "he discloses the [inside] information, otherwise than in the proper performance of the functions of his employment, office or profession, to another person." The maximum penalty for a violation is seven years in prison.

If a firm I instructed was to allow my company's confidential information to be seen on trains, I would disinstruct the firm, blacklist them and report them to the SRA. If an individual lawyer in my team did the same, I would fire them summarily for gross misconduct.

If you think that a secret is something you tell one person at a time, you're in the wrong job. If you've got work life problems, resolve them. If you're on the train working on my file on your laptop, you're a criminal and you're fired.

Tom Kilroy is general counsel at a UK software company and the author of the GC's Eye View blog. Click here to follow Tom on Twitter.

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