Sidechick confidentiality: How lawyers protect your private affairs in property transactions

Confidential label. (Courtesy/iStockphoto)

I am married but have been in a relationship that resulted in a daughter who is now six years old.  I want to buy an apartment for my second family so that they can live comfortably. I have concluded that it would be cheaper in the long run to buy the apartment instead of paying the ever soaring rent in Nairobi for years. My worry, however, is whether the lawyer I will entrust to undertake the property transaction can let the cat out of the bag. I would wish that the transaction remains private for the interest of peace and benefit of my two families.

Onesmus, Nairobi

It is highly advisable that you engage an Advocate of the High Court with a valid practicing certificate - for the current year – for the transaction of the apartment.
You should not worry whether the Advocate may let the cat out of the bag as that is where confidentiality between the lawyer and client steps in. The confidentiality is similar to the one that medical doctors have with their patients or bankers with their clients.

In legal practice, it is expected that clients disclose their sensitive dilemmas to lawyers and expect complete confidentiality in return. The law generally protects confidential information of clients to lawyers - the duty of confidentiality means an advocate cannot divulge information obtained when representing a client.

The rationale is to promote the work of lawyers and allow clients to freely discuss intimate details without fear the information could be disclosed to the public. In turn, public confidence in lawyers and the legal system is maintained and promoted and human dignity is also protected.

In some cases, a lawyer cannot even tell anyone else that he or she is representing you without your permission. The duty of care is in place as a lawyer cannot represent you effectively without knowing the truth of the matter at hand.

Therefore, the duty of confidentiality is a holy privilege that ensures the client is honest with the lawyer for the best legal representation.

And the duty of confidentiality lasts a lifetime! The lawyer-client privilege is holy to learned friends and breaking it has dire legal ramifications that may amount to gross professional misconduct.

However, there could be few exceptions that may make a lawyer divulge information without the direct consent of the client. For instance, if the lawyer is sued regarding the transaction and the court orders a revelation towards dispensation of justice.

But, the lawyer should not disclose information related to the transaction to ruin the reputation of the client. In such cases the lawyer may file special papers to ensure only the Judge and affected lawyers get access to the confidential information.

Ayodo is an Advocate of the High Court of Kenya.