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Are attorneys legally or ethically bound to share evidence or discovery materials in civil matters before actual complaints are filed?

Let's say Person A (a non-public figure) suspects Person B (a non-public figure) of a civil tort, such as defamation.

Person A gets Lawyer A to send a cease and desist letter to Person B. Person B shows the letter to their Lawyer (B). Lawyer B asks Person B if they have indeed defamed Person A. Person B says they have and outlines the incidents. Lawyer B determines there is enough evidence that the defamation did damage the reputation of Person A and more than likely resulted in monetarily loses in business for Person A.

Is Lawyer B obligated in any legal or ethical sense to inform Lawyer A of what Person B said before a complaint is filed? Or only after a complaint is filed? And only when discovery takes place? Or would Lawyer B inform Lawyer A out of common and/or professional courtesy?

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There are two issues here:

  1. B's "confession" to their lawyer would fall within the definition of legal professional privilege, specifically litigation privilege:

Litigation privilege protects communications between lawyers or their clients and any third party for the purpose of obtaining advice or information in connection with existing or reasonably contemplated litigation.

So unless B gives their permission, this cannot be disclosed.

  1. A party's duty for disclosure, under Part 31 Civil Procedure Rules, begins once proceedings have started by a claim being issued under Rule 7.2(1) unless Rule 31.16 applies as section 33 Supreme Court Act 19811 permits disclosure before proceedings have started.

So unless A makes, and is successful with, a section 33 application there is no legal obligation on B for disclosure that is not protected by legal professionalprivilege.

1 Defamation is dealt with as a "media and communications claim" under Rule 53.1(3) in the High Court so the other method of pre-proceedings disclosure at section 52 County Courts Act 1984 does not apply here.

Although tagged , I have answered as per the Help Centre: "we expect and encourage answers dealing with other jurisdictions ... please tag your answer using the tag markdown: [tag: some-tag]"

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Client B's confession is a privileged communication.

In the absence of special circumstances, Lawyer B is legally and ethically obligated to never share it with Lawyer A.

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