Interview preparation and conduct - Handling sensitive infor...

Learning Outcomes

This article covers secure client interviewing and the ethical handling of sensitive information and conflicts, including:

• Preparing for and conducting interviews securely while maintaining confidentiality and identifying and managing potential conflicts of interest
• Distinguishing client confidentiality from legal professional privilege and explaining their limits in practice
• Setting accurate expectations at the outset (without promising absolute secrecy) using a clear, consistent script
• Handling sensitive disclosures with non-judgemental, objective listening and effective questioning techniques (including funneling)
• Identifying statutory and ethical exceptions to confidentiality, including AML reporting, terrorism-related disclosures, court orders, and duties to the court
• Recognising actual and potential conflicts of interest and taking immediate, proportionate steps to manage or cease acting
• Recording, storing, and restricting access to sensitive interview notes in accordance with UK GDPR and the Data Protection Act 2018
• Escalating ethical issues promptly to the firm’s COLP/MLRO and seeking supervisory advice when needed
• Meeting SQE2 assessment standards for professional ethics, client care, and legally compliant interviewing practice

SQE2 Syllabus

For SQE2, you are required to understand secure client interviewing, including confidentiality duties, legal professional privilege, handling sensitive disclosures, ethically compliant client communication, and conflict management, with a focus on the following syllabus points:

• understanding the importance and limits of client confidentiality and legal professional privilege
• managing and responding to sensitive information and disclosures during interviews
• identifying and addressing conflicts of interest arising in the course of the interview
• ensuring effective, ethically compliant communication with clients
• applying professional conduct rules relevant to interviews
• recording and storing sensitive information appropriately

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.

1. What is the difference between client confidentiality and legal professional privilege in the context of a client interview?

2. Which situations require a solicitor to withhold confidentiality and make a disclosure without the client's consent?

3. Briefly explain one way to manage a conflict of interest that arises during a client interview.

4. True or false? You can always promise absolute confidentiality for everything discussed in an interview.

Introduction

Interviewing is a core solicitor skill. During interviews, you may learn highly sensitive facts, some of which could affect the entire matter or lead to new ethical duties. In addition to gathering legal and factual information, you must actively safeguard the client's confidential information and swiftly detect any risk of conflicts of interest. Failure to do so may breach professional rules and harm both client interests and your own reputation.

Effective interviewing also demands non-judgemental, objective engagement. Clients will often arrive distressed, angry, or ashamed, and may be reluctant to disclose relevant material. Your role is to create a safe, private environment; listen actively; probe sensibly for the facts in issue; and advise clearly on legal options and risks. Practically, this means controlling the setting (quiet, private room or secure remote platform), explaining the purpose and limits of confidentiality, and using questioning techniques that encourage open, truthful accounts without suggestion or judgement.

Confidentiality: Obligation and Limitations

You owe an automatic duty of confidentiality to every client. This means that information acquired in the course of professional work must not be disclosed without your client's consent. However, this is not an absolute rule. There are prescribed exceptions.

Key Term: client confidentiality
The duty to keep all client affairs private, prohibiting disclosure to any third party without informed client consent, except in limited circumstances.

Key Term: legal professional privilege
A legal right protecting communications between a client and their lawyer from disclosure to third parties—including courts—subject to narrow statutory exceptions.

Confidentiality arises from contract and professional duties; LPP is a substantive legal right. LPP covers legal advice privilege (confidential communications between lawyer and client for the dominant purpose of seeking/giving legal advice) and litigation privilege (communications with third parties for the dominant purpose of existing or contemplated litigation). Privilege may be lost if confidentiality is waived (e.g., through circulation beyond the privileged circle), or does not arise where the crime-fraud exception applies. Be cautious about the presence of third parties (friends, family, interpreters) in interviews: their presence can jeopardise privilege unless they are necessary to obtain legal advice (e.g., interpreter, expert) and confidentiality is preserved.

Under the SRA Standards and Regulations (2019, as updated), you must keep client affairs confidential and only disclose where permitted or required by law. You must also act with independence, uphold public trust, and avoid misleading the court.

Importance of Handling Sensitive Information

Interviewees often reveal facts that are personal, distressing, or potentially harmful if misused. You must listen objectively, without judgement, and create a secure environment that encourages candour. However, not all information can be guaranteed total secrecy. You need to be clear with clients about the limits of your confidentiality at the outset, especially regarding exceptional circumstances such as statutory reporting or crime prevention duties.

Non-verbal communication matters: adopt open posture, allow silences, and signal empathy without leading. Use funneling (open-to-closed) questions to move from general narrative to specific facts, and summarise back to check accuracy. Where clients are reluctant, gently explain why certain questions are necessary, emphasise confidentiality, and seek express permission before using highly sensitive information (e.g., in statements, witness handling).

Situations in Which Disclosure May Become Mandatory

Generally, the duty of confidentiality overrides most other obligations. However, disclosure without consent may be required where:

• You are compelled by law or a court order (e.g. anti-money laundering legislation or terrorism reporting)
• Non-disclosure could facilitate or conceal a crime or fraud, and statutory rules override privilege
• There is a risk of serious harm to others, if mandated by law

If such a situation arises, you must explain the circumstances to the client as soon as possible (unless prohibited), and seek supervisory advice.

These duties include, in particular:

• Proceeds of Crime Act 2002 (POCA): in the regulated sector, failure to disclose knowledge or suspicion of money laundering is an offence (s330). Tipping-off (s333A) is restricted. There are safeguards for professional legal advisers and limited savings for LPP, but LPP cannot be used to further a crime or fraud.
• Terrorism Act 2000 and related legislation: certain information must be reported to prevent terrorism or its financing.
• Court orders/statutory compulsion: compliance may be required, subject to asserting applicable privilege.

Litigation and consensual dispute resolution are treated distinctly under Bowman v Fels [2005] EWCA Civ 226: normal conduct of litigation is generally excluded from POCA s328’s “arrangements” offence, and LPP is respected; however, if you are aware you are being used to further a crime, you must not assist and may need to make a disclosure.

Worked Example 1.1

You interview a client about a property transaction, and during the meeting she admits she has used some of the funds for laundering criminal proceeds.

Answer:
Client confidentiality does not override the duty to make a disclosure under the Proceeds of Crime Act 2002. You must report a suspicion of money laundering via your firm’s nominated officer (MLRO), even without client consent. Legal professional privilege may protect some advice, but not if the communication is in furtherance of crime/fraud. Do not tip off the client if you are in the regulated sector and disclosure might prejudice an investigation. Pause advice, inform the client of the general limits to confidentiality (without disclosing that a SAR will be made if tipping-off risk arises), and seek immediate supervisory guidance.

Initial Disclosure: Explaining Confidentiality and Its Limits

Set expectations at the start of every interview. Inform the client of your duty to maintain confidentiality, but also of the rare, lawful circumstances when disclosure may become compulsory. This transparency builds trust while protecting you from later complaints.

A practical script (tailor to your firm’s policy):

• “Everything you tell me is confidential to the firm and protected by legal professional privilege where applicable. There are limited exceptions where the law may require or permit disclosure without your consent—for example, anti-money laundering or terrorism reporting, or if a court orders disclosure. I will make every effort to discuss any such issue with you, unless the law prohibits me. I’ll also not act where there is a conflict of interest. Are you happy to proceed on that basis?”

Confirm whether anyone else is present and why. If a third party attends (family member, friend), explain that their presence may affect privilege and agree whether they should stay. If an interpreter or support worker is necessary, record their details, have them sign a confidentiality undertaking, and minimise disclosure beyond what is necessary.

Recording and Maintaining Sensitive Information

Accurate, contemporaneous notes are essential, particularly for sensitive or potentially disputed interviews. Only essential information should be recorded. It must be stored securely—whether as digital files or physical notes—consistent with your firm’s data protection policies.

Under UK GDPR and the Data Protection Act 2018:

• establish a lawful basis for processing (usually necessary for performance of a contract, compliance with legal obligations, or establishment/exercise of legal claims)
• recognise that much interview content may be “special category data” (e.g., health, sexual life, political opinions), which requires an additional condition (most commonly the legal claims ground)
• minimise data collected; avoid recording irrelevant personal information
• store notes with access controls on a strict need-to-know basis; encrypt digital records; lock physical files
• set retention periods; avoid keeping sensitive material longer than necessary
• manage subject access requests lawfully, preserving privilege and confidentiality

Ask permission before taking notes and briefly explain why you are noting only selected details. If a client becomes distressed during sensitive disclosures, adjust pace, take breaks, and summarise to confirm accuracy. When using documents, highlight relevant passages and remove them from sight once they have served their purpose to reduce distraction.

Managing Disclosures of Sensitive or Distressing Facts

Clients may be reluctant to discuss matters that cause shame, distress, or fear of legal repercussions. Respond with calm professionalism. Avoid expressing judgement or suggestion. Where the information is relevant, you must gather enough detail to provide legal advice, but you should explain why such questioning is necessary and emphasise your duty of confidentiality.

Use funneling questions to move from general accounts (“Tell me what happened that day”) to specifics (“Who else was present?” “What time did you arrive?” “How did you respond?”). If a client is under stress (anger, tears), acknowledge feelings, pause, and avoid taking major instructions until the client has recovered. If the client is unwilling to disclose, explain your justification for asking, confirm confidentiality, limit questions to what is essential, and seek express permission before using in writing or advocacy.

Worked Example 1.2

A client reveals in confidence during an interview that she has previously lied under oath in related proceedings.

Answer:
Client confidentiality still applies and you cannot disclose without consent. However, you cannot allow the client to perpetuate a fraud upon the court. If she intends to give further false evidence or asks you to mislead the court, you must not assist and may need to cease acting if she refuses to accept this. You owe duties to the court not to mislead it and to act with integrity. Advise firmly that any future testimony must be truthful and that you cannot put forward evidence you know to be false. If necessary, pause the interview and seek ethics guidance.

Recognising and Handling Conflicts of Interest

A conflict of interest may arise if you or your firm owes competing duties, for example, owing duties to two clients whose interests differ, or where your own interests conflict with your duty to a client.

Key Term: conflict of interest
Any situation where the solicitor’s duty to act in the client’s best interest competes with another client’s or their own interests, risking compromised independent advice.

Solicitors must not act where there is an actual or significant risk of conflict between clients, except in limited circumstances prescribed by professional rules (such as joint instructions with informed consent for non-contentious matters). You must always screen for conflicts both at the interview and as the matter progresses.

Under the SRA Code of Conduct, exceptions are narrow and require safeguards: informed consent from each client, effective confidentiality protections, and assurance that you can act in each client’s best interests. Be cautious where a client introduces another person into the interview who is also (or may become) a client. Conflicts can emerge from the client’s disclosure mid-interview—for example, revealing they are adverse to another client of the firm or disclosing financial interests that place the firm’s duty at odds with the client’s needs.

Key Term: informed consent
The client’s freely given agreement for a solicitor to proceed, having been fully advised of the risks and implications of a proposed course of action, particularly in conflict situations.

If you suspect a conflict, do not continue to take substantive instructions. Explain the situation neutrally, avoid sharing confidential information across clients, and consult your firm’s COLP or ethics advisor immediately.

Exam Warning

Explaining the scope and limits of your confidentiality duty is critical. Promising 'absolute secrecy' is misleading and may be professionally negligent if an exception arises. Make sure your standard script reflects the statutory and ethical limits.

Steps to Take if a Conflict Emerges Mid-Interview

If a client’s disclosures put you in actual or potential conflict:

1. Stop the interview immediately.
2. Explain that the new facts may create a conflict.
3. Inform the client you must consult your firm's COLP or professional ethics advisor.
4. Do not continue to advise until the conflict check is reviewed and an ethical path is confirmed.

Inaction or continuing may invalidate advice or even cause disciplinary consequences.

Additional practical points:

• avoid asking for detail that might increase conflict exposure until you have guidance
• ensure separate teams and information barriers are feasible if the matter could proceed under a permitted exception (rare and tightly controlled)
• record the pause, your explanation, and the referral to COLP/ethics in your notes

Worked Example 1.3

Midway through an interview, you realise the facts disclosed by your client apply equally and oppositely to another existing client.

Answer:
This is a conflict of interest. You must pause the interview, explain the situation honestly, and seek guidance on whether you can continue. You may have to stop advising both clients, or ensure strict client confidentiality and obtain informed consent if permitted by professional rules. Do not disclose any information across clients, and involve your COLP to determine whether an exception applies and what safeguards (if any) are adequate.

Handling Requests for Absolute Secrecy

Never guarantee that everything told in confidence will remain secret. Always warn about exceptions for disclosures required by law. Well-managed, open communication reduces client anxiety and protects your position if legal obligations require disclosure.

Frame reassurance carefully: emphasise privilege and confidentiality, while accurately describing statutory carve-outs and duties to the court. Reconfirm that any external disclosure would be the minimum necessary and (where lawful) discussed first.

Worked Example 1.4

A client insists that their spouse attend the interview “to keep things simple” and asks you to confirm “this won’t affect confidentiality.”

Answer:
Explain that confidentiality still applies, but privilege may be compromised if a non-essential third party is present. If the spouse’s presence is not necessary to obtain or give legal advice, LPP may not attach to the communication. Offer alternatives: conduct part of the interview privately; invite the spouse only for non-sensitive logistics; or proceed with the spouse present after warning that privilege may be affected. If you proceed, record the rationale, have the spouse sign a confidentiality undertaking, and keep disclosures to the minimum necessary.

Worked Example 1.5

In an employment interview, your client reveals potential terror financing by a colleague and asks you “not to tell anyone.”

Answer:
You cannot promise non-disclosure. Certain terrorism-related information may require reporting under applicable legislation. Explain the limits of confidentiality, pause advice, and consult your MLRO/ethics lead immediately. If a report is required, avoid tipping-off; do not alert the colleague; and follow firm protocols strictly.

Practical Interviewing: Environment, Listening, and Questioning

• Privacy and setting: secure a private room or quiet area; avoid public spaces where discussions can be overheard, particularly if the other side may be nearby. For remote interviews, use secure platforms, disable recordings unless policy permits, confirm participants present on the call, and use headphones to maintain privacy.
• Rapport and non-judgement: be objective and neutral. Allow clients to deliver their narrative before probing. Acknowledge feelings; avoid rudeness; if you momentarily lose composure, pause, apologise, and resume.
• Funnelling and active listening: start with open questions (“Tell me about…”) to elicit a full account, follow with context (“who/where/when”), and then reasons (“how/why”). Close with confirming questions to check understanding. Summarise and reflect back to confirm accuracy.
• Sensitive topics: state why personal questions are necessary, remind the client of confidentiality, and keep questions economical. Seek express permission before using highly sensitive content (e.g., sexual history, health data) in documents.
• Note-taking: use concise, legible notes; record sources; identify next steps; and avoid verbatim recording unless policy allows. Ask the client to pause when necessary to ensure accuracy. Note any decisions deferred due to distress.

Integrating Ethics: Duties to the Court

Your duty to the court overrides client preferences that would mislead the tribunal. You must not put forward evidence you know to be false, nor allow the court to proceed on a bad point. If a client proposes conduct that would mislead the court, advise firmly and, if necessary, consider ceasing to act. Explain gently but clearly that you cannot pursue unlawful or unethical tactics, and that honest testimony is mandatory.

AML and Privilege Nuances

Even within litigation, AML obligations require vigilance. Bowman v Fels confirms that normal litigation and its consensual resolution are not usually “arrangements” under POCA s328, and LPP is preserved. However:

• you must not assist crime/fraud; if you are aware of prima facie evidence that you are being used to further a crime, seek ethics/MLRO guidance and consider disclosure
• in the regulated sector, failure to disclose knowledge or suspicion may be an offence (s330)
• tipping-off restrictions apply (s333A), with limited defences for professional legal advisers

Ensure firm protocols for suspicious activity reports (SARs) are understood. If a SAR is made, pause substantive advice that might prejudice an investigation, and avoid alerting the client where tipping-off risk exists. Keep precise records of steps taken and advice sought.

Data Protection Practicalities

• Access controls: restrict file access to the matter team; use role-based permissions; audit access logs
• Transmission: encrypt emails containing special category data; use secure portals for documents
• Retention and disposal: follow firm retention schedules; securely delete or archive when appropriate
• Subject access: privilege and confidentiality may lawfully limit disclosure; consult DPA/UK GDPR exemptions and seek internal guidance

Revision Tip

When preparing for interview assessments, practise clearly explaining your confidentiality duties and their exceptions. Use realistic scripts and roleplay advisory pauses when sensitive information or conflicts arise. Practise handling reluctance, anger, and distress, and rehearse funneling from open narrative to specific facts.

Key Point Checklist

This article has covered the following key knowledge points:

• The solicitor’s duty of confidentiality to clients and the legal meaning of legal professional privilege (legal advice and litigation privilege)
• The principal exceptions to confidentiality, including mandatory disclosures under POCA and terrorism legislation, court orders, and the crime-fraud exception
• Practical initial disclosures to clients: accurate scripts that explain confidentiality, privilege, and their limits
• Best practice for recording and storing sensitive interview information in line with UK GDPR and the Data Protection Act 2018
• Effective interviewing techniques: active listening, funneling, neutral questioning, and managing reluctance, anger, and distress
• Identifying actual and potential conflicts of interest and the immediate steps to take (pause, explain, consult COLP/ethics, avoid continuing)
• The meaning and significance of informed consent in conflict and confidentiality situations
• The risks of promising 'absolute' secrecy, and how to explain confidentiality correctly
• AML nuances: regulated sector duties, tipping-off restrictions, and the limits of privilege (including Bowman v Fels guidance)
• Duties to the court: do not mislead; decline to assist in false testimony; consider ceasing to act if the client refuses to proceed ethically

Key Terms and Concepts

• client confidentiality
• legal professional privilege
• conflict of interest
• informed consent