Obtaining Advisers' Files (update re Privilege and Confidentiality) – responding if there is reluctance to assist you …

My earlier posting on this subject indicated as a first step the way you might look to obtain files from former (or even current) advisers.

So what happens if for example you find yourself encountering any reluctance on the part of the advisers to provide you with that which you have requested. The below is a suggested template letter in response which may be relevant when there appears some reluctance on the grounds of either privilege and / or confidentiality:

If the information is refused on privilege or confidentiality grounds, then subject to the precise circumstances of your case and subject to you being the party (or some successor) that instructed the adviser (and therefore the “client”), you may consider it appropriate to respond as follows:

Dear Sirs

INSTRUCTIONS IN RELATION TO [NAME COMPANY / INDIVIDUAL]

Thank you for your letter dated [INSERT DATE] in response to my letter requesting your files and data for the above matter(s).

Unless I have misunderstood, I note that you appear to be reluctant to release to me the files because you submit the same are privileged and / or confidential.

I trust you will appreciate that privilege and confidentiality are usually rights enforceable by the client, not the adviser. The adviser generally is likely to have duties (subject to the terms of engagement) to preserve the confidentiality of the client’s information.

Further, the adviser does not appear capable in any event of asserting either privilege or confidentiality against the client themselves.

I would therefore be grateful if you could confirm on what basis you are asserting entitlement to exercise such rights of either privilege or confidentiality such that I might be denied the files requested.

If indeed you now are prepared to recognise my entitlement to the files please forward the same to me at your earliest convenience.

I look forward to hearing from you.

Yours faithfully


[NAME AND CAPACITY IN WHICH SIGNING]


DISCLAIMER

The aforesaid is not legal advice and is not to be relied upon as such. No liability is accepted by the writer for any reliance placed on the same.

The circumstances of your case may not fit the aforesaid generic suggested response which is afforded for information purposes only.

If you have a specific query then you should seek independent legal advice on the same.

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