Solicitor cleared over alleged confidentiality breach

SDT: Case not proven

A solicitor accused of disclosing to a client confidential information about a former client has been cleared of wrongdoing by a disciplinary tribunal.

It used to be very rare for the Solicitors Regulation Authority (SRA) to fail with prosecutions, but we have reported on seven other cases over the past year.

James Daniel Julius Burnett was born in 1964 and qualified in 1993, and at the relevant time worked at Geoffrey Lurie Solicitors in Newcastle, initially as a consultant and later as a director.

In 2015, the firm acted for former Client ‘C’. The following year, Mr Burnett was instructed by Client N to obtain probate in his mother’s estate. C was the partner of N’s mother.

C instructed solicitors to make a claim against N’s mother’s estate, and the solicitors requested C’s file in relation to the benefit fraud from Geoffrey Lurie.

Mr Burnett drafted a letter enclosing the file, which said: “We would draw your attention to his statement handwritten in [GL’s] notes. In his statement [Client C] says that he did not declare capital because they were not living together in the normal sense of the word.”

The letter was attached to emails sent to N and C’s solicitors on 15 November. Mr Burnett also sent a hard copy, but it was seen by the firm’s COLP in the post tray; she considered that it contained information confidential to C.

She asked Mr Burnett to remove the offending paragraph from the hard copy letter before it was sent out, which he did. In the event, he did not send the file.

C’s solicitors complained that Mr Burnett had breached C’s confidentiality, and the COLP referred the matter to the SRA.

Before the tribunal, the SRA argued that it was plainly not in C’s interests for the information in GL’s notes to have been provided to N, as it impacted on his credibility and the viability of his claim against the estate.

Mr Burnett told the tribunal that N seemed to know all about the criminal proceedings – he had been living with his mother and C at the time – and that he never disclosed the file to N.

The solicitor said he assumed the information in the file was already in the public domain.

The SDT found that the SRA had not proved beyond reasonable doubt that the circumstances in which C gave instructions to GL were confidential.

“The tribunal determined that, however unlikely it was that GL would have ventilated to Consett Magistrates’ Court the circumstances in which he had taken and recorded his client’s instructions and that that information had therefore lost its confidentiality, it was still a possibility. The [SRA] had not adduced any evidence to demonstrate to the contrary.”

That possibility, it added, was more than “trifling”.

This meant that a second allegation, that Mr Burnett failed to inform C’s solicitor that he had provided confidential information to N, was also not proved beyond reasonable doubt.

The tribunal also threw out the SRA’s attempt to amend a third allegation that Mr Burnett had acted where there was a conflict of interest, or significant risk of one, with an allegation that he had breached confidentiality.

The application to amend was made on the first day of the hearing – some five months after the case was issued – and the SDT rejected the SRA’s submission that this was just a technical change.

It said the amendment “significantly altered the nature and context” of the allegation and that Mr Burnett had not had a chance to mount a defence to it.

It would not be just to allow the amendment, the tribunal decided.

Neither party applied for costs.

Of those other seven cases we have reported on over the past 12 months where those prosecuted were exonerated, one was the decision of a fresh tribunal after the non-solicitor involved successfully appealed the original ruling banning him, while another saw one of the two solicitors involved reprimanded for a minor failure after the main allegations were dismissed.

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