Learning Outcomes
After reading this article, you will be able to explain the obligations of confidentiality in solicitor-client interactions, define and apply the concept of 'without prejudice' labelling to legal correspondence and communications, and identify common risks related to misuse or misapplication of these labels. You will understand how these principles affect client-facing outputs and be able to recognise when legal privilege or confidentiality applies, and how proper labelling mitigates risk for both clients and solicitors.
SQE2 Syllabus
For SQE2, you are required to understand the professional obligations surrounding confidentiality and legal privilege and the function of without prejudice communications in legal practice. This article focuses your revision on:
- the core requirements of confidentiality and privilege in client communications
- the practical use and correct application of 'without prejudice' labelling
- risks arising from incorrect or unclear use of labelling and common pitfalls
- how to draft and advise on correspondence to ensure client protection is maintained
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the difference between a confidential and a privileged document?
- When should you mark correspondence as 'without prejudice'?
- If a solicitor mistakenly labels a letter as 'without prejudice' when it contains no settlement offer, does the label apply?
- True or false: Legal advice privilege always applies to written advice given to a client by a solicitor.
Introduction
Solicitors routinely produce documents for clients and correspond with third parties. You must understand how obligations of confidentiality and legal privilege operate when providing client-facing outputs, and know when and how to apply the 'without prejudice' label to negotiations. Errors in these areas can result in the inadvertent waiver of privilege, loss of client protection, or increased risk of evidence being used against a client. This article covers the essential legal concepts, correct procedures, and risk management techniques you must know for SQE2.
Key Term: confidentiality
A solicitor's professional duty not to disclose information about a client or their affairs to others without the client’s authorisation, except where permitted or required by law.Key Term: privilege
A legal protection allowing certain communications (such as between solicitors and their clients) to be withheld from production in legal proceedings.Key Term: without prejudice
A phrase indicating that a document or communication is made in an attempt to settle a dispute and cannot generally be disclosed in court without both parties' consent.Key Term: legal advice privilege
A subset of privilege protecting confidential communications between a client and their legal adviser for the purpose of obtaining legal advice.Key Term: litigation privilege
A subset of privilege applying to confidential communications created for the dominant purpose of conducting or advising on actual or reasonably anticipated litigation.
Client Confidentiality and Legal Privilege
Professional Duty of Confidentiality
Solicitors have a strict duty to keep information relating to clients and their matters confidential. This applies to all information provided by the client or created in the course of acting for them. The duty extends beyond the end of the retainer and covers all individuals in the firm.
Breaches of confidentiality can result in disciplinary action. However, there are limited exceptions—such as client consent, legal compulsion (e.g. court order), or where the law requires disclosure (e.g. anti-money laundering reporting obligations).
Key Term: confidentiality
A solicitor's professional duty not to disclose information about a client or their affairs to others without the client’s authorisation, except where permitted or required by law.
Legal Advice and Litigation Privilege
Certain communications or documents may attract legal privilege. Privilege enables clients to refuse disclosure of protected documents in legal proceedings.
- Legal advice privilege covers confidential communications between client and solicitor for the purpose of seeking or receiving legal advice.
- Litigation privilege covers confidential communications with third parties (e.g. experts, witnesses) made for the dominant purpose of actual or reasonably anticipated litigation.
Key Term: privilege
A legal protection allowing certain communications (such as between solicitors and their clients) to be withheld from production in legal proceedings.Key Term: legal advice privilege
A subset of privilege protecting confidential communications between a client and their legal adviser for the purpose of obtaining legal advice.Key Term: litigation privilege
A subset of privilege applying to confidential communications created for the dominant purpose of conducting or advising on actual or reasonably anticipated litigation.
Privilege can be waived—intentionally or accidentally—by the client. Careless reference to privileged content in open correspondence can result in waiver.
'Without Prejudice' Communications
Communications made in a genuine attempt to settle an existing dispute may attract the 'without prejudice' rule. This means those communications are protected from disclosure in most court proceedings about the dispute, encouraging parties to negotiate freely.
Key Term: without prejudice
A phrase indicating that a document or communication is made in an attempt to settle a dispute and cannot generally be disclosed in court without both parties' consent.
Correspondence should be marked 'without prejudice' only where it contains a genuine settlement offer or discussion. Labelling regular correspondence inappropriately can confuse the parties and the court, and may not provide the intended protection. Content and context are more important than the label, but the label provides practical clarity.
When to Use 'Without Prejudice' and 'Confidential'
- Use 'without prejudice' when a letter or conversation contains a genuine offer of settlement or elements of settlement negotiation.
- Use 'confidential' for internal memoranda, draft client documents, or lawyer-client communications that should not be shared externally.
Incorrect labelling can lead to loss of privilege, misunderstandings, or client complaints.
Worked Example 1.1
A solicitor sends a letter to the opposing party marked 'without prejudice', putting forward an offer to settle an ongoing contractual dispute. During trial, the opponent tries to include this letter as evidence of an admission of liability. Can it be admitted?
Answer:
No—the content of a genuine settlement offer, labelled 'without prejudice', cannot generally be disclosed or used as evidence of liability, unless both parties agree or an exception applies.
Worked Example 1.2
A solicitor, without considering the content, marks all outgoing correspondence as 'without prejudice', including routine status updates containing no settlement offers. The matter proceeds to trial. Is the routine update protected from disclosure in court?
Answer:
No—the mere use of the 'without prejudice' label is not decisive. The court will look at substance over form. Unless the correspondence genuinely relates to settlement, it can be admitted.
Exam Warning
The courts may disregard incorrect labels. Labelling correspondence inaccurately as 'without prejudice' does not guarantee privilege or protection. Always consider the content, context, and purpose before applying labels.
Risks with Client Outputs and Document Labelling
- Misleading or inconsistent use of 'without prejudice' or 'confidential' can waive privilege or create uncertainty about admissibility.
- Failing to label a settlement communication can expose a client if the other party seeks to admit it in court.
- Overuse of labels can dilute their effect and create risk for the firm.
Revision Tip
Before sending any client-facing output, check whether the content is confidential, privileged, or relates to settlement. Apply the correct label only where appropriate, and keep a clear record for the file.
Key Point Checklist
This article has covered the following key knowledge points:
- The professional duty of confidentiality is strict, with limited exceptions.
- Legal privilege protects certain communications and documents from compulsory disclosure.
- Correct use of 'without prejudice' labelling is essential for settlement discussions.
- The label 'without prejudice' cannot provide protection on its own—content is decisive.
- Failing to use or misuse confidentiality or 'without prejudice' labels carries real risk for clients and solicitors.
Key Terms and Concepts
- confidentiality
- privilege
- without prejudice
- legal advice privilege
- litigation privilege