Confidentiality waivers split market

A year after the Law Society clarified its position on confidentiality waivers, City firms are still debating whether or not to use them in their standard terms of business (STBs).

Since last year firms have been able to include a clause in their STBs that allows them to advise a client despite possessing confidential information about a rival, as long as sufficient information barriers are in place.

Clifford Chance, Freshfields Bruckhaus Deringer and Linklaters confirmed to The Lawyer that they have added the clause to their STBs as a matter of course, both for new and existing clients. Norton Rose, Slaughter and May and Travers Smith have also introduced the waiver.

Linklaters’ general counsel Raymond Cohen said: “Where these guidelines are useful is if we’ve advised one client on an old matter and then that client ends up opposite us on a new matter. We wouldn’t be able to approach them about the new matter because it would be confidential, so the waiver covers that situation.”

Linklaters, together with Allen & Overy, Clifford Chance, Freshfields, Herbert Smith and Slaughters, lobbied the City of London Law Society last year to push for more guidance.

There has not been universal uptake of the waiver clause. Firms such as Berwin Leighton Paisner and Macfarlanes have taken a more conservative approach, and do not include it.

Even for those firms using waivers, they are seen as a safety net rather than a foolproof protection. Travers’ pensions partner Peter Esam said: “As a general provision, they’re just protection against tripping up.

“The commercial reality is that you don’t want to upset any client and you would discuss potential issues.”