Secrecy, Privilege and Confidentiality Richard Parlour Financial Markets Law International © FMLI 2006

Secrecy v Confidentiality Tournier Exceptions Secrecy v confidentiality Disclosure to authorities Disclosure to private investigators Switzerland Luxembourg Austria Hungary Kenya

Privilege Three Rivers case ( Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] QB 916) Legal advice privilege Litigation privilege Privilege to third parties P v P Bowman v Fels Pure legal advice on legal rights and obligations Rationale to seek advice with candour, so no disclosure without consent Advice as to what should prudently be done Rights, liabilities, obligations or remedies All advice within the ordinary scope of a lawyer’s business

Privilege Issues Apply to inquests, inquiries? Apply to regulations? Apply to private rules? Apply to guidance? Apply to general advice, research? Apply to tax advice? Apply to experts? Apply to accountants? Apply to investigators? Apply to informants? Who is the client? Loss through copying, forwarding

Reporting Issues Reporting virginity Bureaucracy in reporting procedure Protection of reports Public Interest Immunity Data Protection issues FIU consent Inter-agency communications Freedom of Information Tipping off Whistleblowing Witness protection Freedom of information Infosec Encryption, password, NTK Choice of Communication means Prosecuting MLROs Extradition