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Posted By Peter Leese
A consultant is approached by a solicitor for a previous client who requires mitigating information/evidence to defend a claim by an employee of the ex client.
The consultant is in possession of a risk assessment that far from providing mitigating evidence provides the opposite. The solicitor was offered this evidence (which the ex client should already have in their possession) but declined.
Is the consultant free to offer this evidence to the employee making the claim - or is there some moral/legal reason to stop the consultant passing this on.
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Posted By Arran Linton - Smith
Code point 1 & 2 of our code of conduct.
The previous client owns the copyright to this material and therefore it is up to the plaintiff's solicitor to obtain this from the previous client.
Nice try by the solicitor, but he should know this!
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Posted By Merv Newman
Arran,
nice answer.
But it puts another question in my mind.
In our consulting contracts we agree not to divulge any information or document supplied by the client for a period of five years. In signing such a contract does the client accept that we CAN divulge information and documents once the five year period has elapsed ? (only one has insisted on an "indefinite" period)
In contra-party we ask them not to divulge any information or document supplied by us during the same period. (IE the audit report and recommendations)
But I know that our reports are exchanged between sister sites.
Should I sue ?
Naah.
Merv
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Posted By Chris Jerman
I have to wonder if there is a difference here between being asked for and providing - as opposed to offering without being specifically asked.
There cannot be any compulsion to disclose placed upon the consultant without direction (by a court or legal authority etc)
May the consultant have sign a contract with the client to the effect that all documentation remained the property of the consultant now and forever? Passing this information may be a breach of contract.
If no such contract exists - would it be immoral NOT to offer the doc to the solicitor?
Who produced the assessment - the client or the consultant as part of the contract?
I think that in all cases the solicitor would be free to accept anything that came their way whilst ever the argument was outside of the court system.
It's a great question, but needs breaking down a bit at a time
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Posted By Chris Jerman
Sorry - I think that I misread that. You legal guys seem to have the answer. Time to bow out.
C
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Posted By Peter Leese
The consultant carried out the risk assessment but no remedial action was taken by the ex client.
My concern is the employees solicitor may not know about this assessment - and that it will not be available to the employee as evidence.
This is compounded in my mind by the ex client solicitor not wanting to see it or accept a copy of it.
I guess I'm asking if our professional codes outweigh our moral obligation to help a person who is now disabled because of an inaction by an ex client?
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Posted By Alan Hewett
Peter,
I take it that this is a civil claim for damages?
If so then I would assume that the injured persons solicitor would request documentation from the employer, this would include the request for a risk assessment.
If the employers solicitor were to state that no risk assessment was present then this would potentially strengthen the claim, so the injured person would be more likely to succeed in their claim.
In such a case then the existence of the risk assessment in your possession would not be an issue?
Would it result in the injured person receiving more compensation if it were available?
If it were a criminal case then that could be a different matter.
Only my own opinion though.
Regards,
Alan
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Posted By Peter Leese
Yes, I can see that Alan, you may be right.
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