File access & Conflict of interest. CONCERNS of a lack of protection for client files at a top Scottish law firm – prompted a Court of Session judge to ban the Edinburgh based firm of lawyers from acting in a £10 million divorce case.
The ruling against Turcan Connell – came after it emerged the wife of one of the law firm’s partners had accessed confidential file notes relating to the financial information of Kae Tinto Murray – who had taken on new legal representation in relation to a divorce case involving her husband – ex Rangers FC owner – Sir David Murray.
Details heard in court of the accessing of confidential files prompted Lord Neil Brailsford to issue a damning opinion which barred Edinburgh law firm Turcan Connell from further acting for Sir David Murray in the divorce case.
The application for interdict against Turcan Connell – was brought by Kae Murray – to prevent the law firm from acting further for her husband Sir David Murray, in proceedings she had raised for divorce, with capital and alimentary financial claims, and for the setting aside of a pre-nuptial agreement regulating their financial affairs in the event of divorce.
Ms Murray and Sir David Murray separated on 22 March 2016. A summons in an action of divorce at the instance of the petitioner against Sir David Murray was signeted on 22 May 2018.
At the beginning of June 2018 Mr Littlefield met with the petitioner and advised that he could no longer act for her in relation to her trust and personal affairs.
She was also advised that Turcan Connell were acting for Si David Murray in the divorce proceedings and that, accordingly, Turcan Connell could no longer act for her in relation to the divorce.
On 4 June 2018 SKO Family Law sent a mandate to Turcan Connell requiring them to provide SKO with the petitioner’s files. That mandate was complied with. On 18 June 2018 a partner in SKO emailed Mr Littlefield primarily in relation to matters arising out of implementation of the mandate.
The email did however further ask for confirmation of what steps TC had “taken to ensure that any electronic information that you hold on behalf of [the petitioner] cannot be accessed by anybody within the firm who (i) may act for [the petitioner’s husband] in the context of the divorce action, and/or (ii) may be a witness in the divorce action to follow.”
On 11 September at a By Order hearing in the divorce action the issue of a challenge to Turcan Connell’s continued representation of Sir David Murray was raised. The present petition was presented on 18 September 2018. As previously noted the petitioner’s electronic file held by the respondents was locked down on 21 September 2018.
Senior Counsel for the petitioner informed the court of two occassions where Yvonne Littlefield accessed files in relation to Kae Murray – after the separation of the petitioner and Sir David Murray,.
On one occasion – Yvonne Littlefield accessed a file note relative to a telephone conversation that Mr Littlefield had with the petitioner on 14 March 2018.
On a second occasion, Yvonne Littlefield – accessed the petitioner’s electronic file again on 17 July 2018, being a time both after Turcan Connell had ceased to act for the petitioner and after the summons in the divorce proceedings had been served.
Counsel noted that in her affidavit, the explanation for accessing the petitioner’s electronic file on those occasions given by Mrs Littlefield was that she had, in the company of her husband Mr Littlefield, met the petitioner in the company of Sir David Murray at a social occasion.
In the context of a social meeting Yvonne Littlefield deponed in her affidavit that “She [the petitioner] struck me at the time as being the sort of person that I would like to include in future invites and it was my intention to keep in touch with her. I do try when meeting clients to understand what is going on in their lives and believe that such knowledge does enhance the relationship. Obviously all matters relating to clients are confidential but clients do appreciate it when they get a sense that they are genuinely appreciated.”
Yvonne Littlefield went on to state further “I have been asked why I have accessed file notes on the file. I would have done so simply for the very purpose of being up-to-date. I don’t know now but it may be that I had in mind inviting [the petitioner] to a Turcan Connell event.”
Senior counsel for the petitioner submitted that the explanation proffered by Mrs Littlefield was inadequate. The petitioner was not, and had never been, Mrs Littlefield’s client.
Mrs Littlefield had never acted for the petitioner nor offered her any professional advice. It was the submission of senior counsel that no proper justification for Mrs Littlefield’s access to the files had been tendered and that her ability to do so on the dates that she did “simply demonstrates the extent to which, within the respondent’s office, there is scope for information moving within a firm”.
The information claimed to be confidential comprised the “retained knowledge” of Mr Noel Ferry – a partner in Turcan Connell, and information in two files compiled by Mr Littlefield, electronic copies of which continued to be held by the firm.
Noel Ferry had earlier represented Kae Murray in the negotiation and preparation of the pre-nuptial agreement with Sir David Murray – while Mr Ferry was Head of Family Law in another firm of solicitors, Maclay Murray & Spens.
In 2013. Noel Ferry joined Turcan Connell initially as a senior associate and from April 2015 as a partner working in that firm’s Glasgow office in the field of family law.
Lord Braisford’s opinion states that “Since joining Turcan Connell, Mr Ferry has not acted for nor had any dealings with the petitioner. Since her marriage to Sir David Murray the petitioner has on a number of occasions instructed and obtained advice from another partner of TC, Mr Peter Littlefield.”
After a consideration of both parties files – Lord Brailsford said “On the basis of the foregoing analysis I form the view that the information contained in Mr Littlefield’s files constitutes information which is confidential to the petitioner disclosure of which would be potentially adverse to her interests.”
Lord Brailsford said it was the case an obvious conflict of interest existed from the date of service of the summons.
In his ruling Lord Brailsford went onto say: “I am bound to state that my view is that a conflict, or at least potential conflict, and therefor the need to have an effective information barrier, should have been obvious to TC from the date of the service of the summons in the action of divorce by the petitioner against her husband, a continuing client of the firm, on 22 May 2018.”
Additionally, Turcan Connell had not “provided the assurances necessary to satisfy the court that there was no risk of disclosure of information prejudicial to the petitioner outwith the direct control of those who had thus far given undertakings”.
The judge concluded: “Consideration of the line of authority I have been directed to demonstrates that the importance of protecting a client’s confidential information is such that professional advisors, in circumstances where they subsequently wish to act for someone with an interest adverse or potentially adverse to the former client, have an onerous burden placed upon them. A consideration of the amount of time that such files might take to investigate is in my view an inadequate reason for failure to consider all material held which might contain information confidential to the former client. I would add that in addition to these eight conclusions on the basis of the information before me, the concerns I expressed at the conclusion of the first hearing appear in large part, to continue to exist.”
“I respectfully agree with the observations of Lord Millet in Bolkiah (supra) that ad hoc arrangements made retrospectively, that is after a potential conflict between existing client and past client have emerged, are unlikely to be as robust as permanent arrangements which operate automatically and are already in place and operative when a conflict emerges. The reason for this is plain, ad hoc arrangements can take time to put into place. During any period before an ad hoc security arrangement or information barrier is erected and is operative there is the potential, by means of either deliberate or inadvertent action for confidential information to leak.”
“In the present case the most important information barrier was the “lock down” system of electronic files. For reasons which, as I have already said, no explanation was forthcoming, lock down did not operate for a period of something in the order of three and a half months after there was an obvious risk created by the petitioner ceasing to instruct TC and that firm correspondingly informing her that they could not act on her behalf in divorce proceedings against her husband.”
“As I have already observed the lack of adequate explanation for that intervention causes me concern. I consider that that fact increases the risk of disclosure of confidential information which is the petitioners concern in this petition. I am also concerned that there has been incomplete examination of all sections of the petitioner’s electronic file. This fact leads me to the conclusion that the court is still, notwithstanding that the respondents were given additional time to provide further information, in a position where it cannot be satisfied as to the precise level of any disclosure of confidential information which has occurred.”
Of further note in Lord Braislford’s opinion – “The petitioner’s submission was developed to show that any information barrier which existed within TC in the context of the petitioner’s file was of an “ad hoc” nature and therefore subject to the general criticism of ad hoc security arrangements made in
Bolkiah (supra) and Georgian American Alloys (supra).
In support of the proposition that, in the context of the present case, ad hoc security arrangements were likely to be inadequate three principle factors were advanced. The first was that the petitioner’s file was only “locked down” on 21 September 2018. This was three days after the present petition had been served upon TC. It was, further, four months after the summons in the divorce case was signeted and at least three and a half months after TC had ceased to act for the petitioner. This was said to clearly demonstrate that the information barrier being relied upon by TC was ad hoc and merely put in place to deal with contingencies as they arose. I was reminded that in Bolkiah (supra) Lord Millet observed that information barriers need to be “an established part of the organisational structure of the firm, not created ad hoc and dependent upon the acceptance of evidence sworn for the purpose by members of staff engaged on the relevant work”.
The second ground was that a necessary implication of the date of lock down was that up to that date there was unrestricted access to the petitioner’s file. A corollary of that was that TC required to rely upon “a large number of affidavits in which qualified and support staff set out their best recollection as to why they accessed the file, whether they recall anything about it and whether they would have discussed the contents with anyone.”
That consideration increased the level of risk of disclosure of information of a confidential nature whether inadvertently or otherwise. Reliance was made in this respect to observations of Field J in Georgian American Alloys (supra). It was also observed by counsel for the petitioner at this point that whilst no criticism was made of TC there were three persons who had accessed the file from which affidavits had not been obtained. This was said to demonstrate the difficultly which would arise when ad hoc security arrangements required to be justified. The ad hoc nature of an arrangement meant, as a matter of probability, that no record of access would be kept and therefore attempts to identify potential disclosure at a later stage would be correspondingly difficult.
The third area of criticism was directed at the work done by Turcan Connell in an attempt to demonstrate that there had been no disclosure of confidential information.
Mr Davie had interrogated the correspondence” area of Turcan Connell’s electronic file for the petitioner. That exercise had enabled Mr Davie to show who had accessed that part of the file and what documents they had seen. He had not however sought to interrogate those parts of the electronic file relating to “emails”, “finance” or “signed documents”. That failure necessarily meant that who had accessed those parts of the file and what they may have accessed was unknown. In these circumstances it simply could not be said that there had been no disclosure of confidential information. It was submitted that there were was “no apparent reason why the respondent could not have provided the petitioner with the print offs for the remainder of the documents” which would have at least enabled them to satisfy themselves in relation to those parts of the file.
Having regard to all the foregoing considerations the submission was that it was impossible to know what the extent of the risk of disclosure in the past had been. Whilst it was accepted that the file had been locked down since 21 September it was further submitted that the risk of disclosure was not removed. The submission was developed by stating that the petitioner could see no obvious reason why TC required to retain the petitioner’s file within its electronic system at all. It was suggested that if TC had taken the step of removing the information from its system and storing it off-site, a step which was taken in relation to files in Bolkiah (supra) as a matter of example, that could have gone further towards removing risk of future disclosure. In these circumstances it was submitted that TC had not demonstrated to the extent necessary that the level of risk existing was acceptable. The submission was further renewed that the appearance of justice and the broader ground of the need to preserve the administration of justice justified the granting of interdict as craved.
The full opinion is available here: OPINION OF LORD BRAILSFORD In the petition KAE ALEXANDRA TINTO or MURRAY Petitioner for interdict
Clients concerned as to the confidentiality of their files with solicitors should pay particular attention to events in this case, particularly where a solicitor moved between firms (not an uncommon thing) but of course, the implications of such a move on confidentiality and failure to protect it, as revealed in this case.
Interestingly, and of note – the following publicly available biographies of Yvonne Littlefield, and that of her partner – Peter Littlefield on the Turcan Connell website – make no mention of any marital connection, despite considerable details in other areas.
Bio – Peter Littlefield
Peter works principally in the areas of contentious probate, succession planning, trust law, will drafting, tax planning, asset protection, executry administration and charities. Peter specialises in tax and estate planning for private clients, including entrepreneurs and landowners. His work includes advice in connection with complex issues arising out of estates and post-death tax planning. He also advises a number of major national charities on Scots succession law.
Peter joined Turcan Connell 2002. He is a member of the Society of Trust and Estate Practitioners (STEP). Peter graduated with an MA (Hons) degree in Sociology from the University of Edinburgh before completing his LLB degree and Diploma in Legal Practice. He speaks at seminars and conferences on succession and trust law.
Peter was assumed as a Partner in April 2011. He is married with two children, and enjoys skiing, mountain biking and the occasional triathlon.
Bio: Yvonne Littlefield
After graduating from the University of Edinburgh in 1997 (LLB HONS DipLP), Yvonne trained with a firm of Glasgow Solicitors. Following qualification as a solicitor in 1999, Yvonne joined Turcan Connell in April 2001 and was promoted to Senior Associate in 2015.
Yvonne advises clients in all areas of asset protection, succession and tax planning during lifetime including in particular, the use of trusts. She regularly advises on (inheritance) tax efficient Wills, and deals with the executry administration of complex (sometimes contentious) estates. She is also involved in incapacity planning e.g. Powers of Attorney and, where necessary, guardianship applications.
Yvonne has been invovled with several clients and their wider families spanning more than a decade, and values the ongoing relationships, and the benefits that can provide when offering advice.
Yvonne is a fully qualified member of STEP (Society of Trust and Estate Practitioners) and a Notary Public.