SRA Code of Conduct in Practice - Confidentiality and disclo...

Learning Outcomes

After reading this article, you will be able to explain the solicitor’s core duty of confidentiality and when information may be (or must be) disclosed under the SRA Code of Conduct. You will distinguish between confidentiality and legal professional privilege, understand key exceptions, and apply the rules where multiple clients or conflicts of interest are involved. You will be able to identify common exam pitfalls and demonstrate these principles in practical scenarios.

SQE2 Syllabus

For SQE2, you are required to understand the duty of confidentiality and the rules on disclosure as they apply in legal practice. Pay particular attention in your revision to:

• the general duty of confidentiality for solicitors and support staff, and its continuing nature
• key exceptions to the duty, including client consent and disclosure required or permitted by law
• the duty to disclose material information to a client and its limits
• managing conflicts where confidential information is held for more than one client
• the relationship between confidentiality, disclosure, and legal professional privilege
• practical application of information barriers and “informed consent”
• typical exam scenarios where these rules interact

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. Does the duty of confidentiality end when the solicitor finishes acting for a client or if the client dies?
2. In what circumstances may a solicitor disclose client information without explicit consent?
3. What must a solicitor do if asked to act for a new client whose interests are adverse to a former client for whom they hold relevant confidential information?
4. Can you explain the difference between the duty of confidentiality and legal professional privilege?

Introduction

The solicitor’s duty of confidentiality is a non-negotiable core requirement when providing legal services in England and Wales. The SRA Code of Conduct sets out the obligation to keep clients’ affairs confidential, but there are important exceptions and related disclosure duties that can arise in practice. Solicitors must understand not just the default position, but also when disclosure may be (or must be) made, and how conflicts or risks involving more than one client should be handled. The distinction between confidentiality, legal professional privilege, and regulatory reporting is frequently tested in SQE2.

The duty of confidentiality

All solicitors (including support staff) must keep the affairs of current and former clients confidential unless disclosure is required or permitted. This strict obligation is a fundamental element of client trust and professional standards.

Key Term: confidentiality
The obligation to keep all information relating to a client’s affairs and matters private, unless disclosure is required or permitted, or the client consents.

Who is bound and what is covered?

The duty of confidentiality covers all information about a client or matter, whatever the source. It applies to solicitors, trainees, paralegals, and anyone else working in a firm. Confidentiality continues after the retainer ends—even after the client’s death.

Key Term: continuing duty of confidentiality
The solicitor’s obligation to keep client affairs confidential persists indefinitely after the retainer ends and after the client dies.

Scope of the duty

The information protected is very broad. Anything learned by the solicitor about a client’s affairs in connection with their engagement is covered, whether the information came from the client, an opponent, or a third party. This includes matters that do not appear significant or sensitive.

Key Term: client affairs
All information relating to a client’s legal matters or personal or business circumstances obtained in connection with legal work.

Exceptions to confidentiality

Although the duty is strict, there are situations where information can be lawfully disclosed. These exceptions arise mainly when:

1. The client consents (explicitly or, with care, implicitly).
2. Disclosure is required or permitted by law (e.g., statute, court order, or regulation).
3. Disclosure is required to prevent certain very serious harms.

1. Client consent

Solicitors may disclose confidential information if the client gives informed consent. The client must understand:

• What information will be disclosed;
• To whom;
• Why; and
• The potential consequences.

Best practice is to record consent in writing.

Key Term: informed consent
Consent given by a client after being provided with sufficient information to make an informed decision.

2. Disclosure required or permitted by law

Confidential information must be disclosed if there is a legal obligation to do so, for example under money laundering regulations, anti-terrorism laws, or a court order. Disclosure is also permitted where legislation allows.

Typical examples include mandatory reporting of suspicions of money laundering, complying with police search warrants, or responding to court orders for production of documents.

3. Limited justifications due to risk of harm

In exceptional cases, solicitors may consider disclosure to prevent death, serious harm, or significant abuse of vulnerable people, even where not expressly required by law. Such disclosure must be justifiable and is best considered only when other options are exhausted and properly documented.

Key Term: justified disclosure
A rare, defensible breach of confidentiality to prevent imminent and serious harm, taking account of public interest factors.

What cannot justify disclosure?

Business convenience, fear of litigation, or reputational concerns are never sufficient reasons to breach confidentiality.

The duty continues—termination and death

The duty of confidentiality is not limited to ongoing matters. It survives the end of the retainer and continues after the client’s death. The right to waive confidentiality passes to the client’s personal representatives after death.

Confidentiality vs legal professional privilege

The duty of confidentiality is related to (but not identical to) legal professional privilege. Privilege is a narrower legal doctrine, and its main effect is that privileged documents/information cannot be forced to be disclosed in court proceedings (unless privilege is lost or overridden by law). However, all privileged information is confidential.

Key Term: legal professional privilege
A principle protecting certain communications between lawyer and client from compulsory disclosure in legal proceedings.

The duty of disclosure to the client

Solicitors are also generally required to disclose to their client any information that is material to the client’s matter, if the solicitor knows of it. However, this duty is not absolute. Disclosure must not be made where:

• It is prohibited by law (e.g., national security),
• The client has given written, informed consent not to be told,
• Disclosure creates a real risk of serious injury,
• The information is known only due to a privileged document disclosed by mistake.

Where confidential information about another client is relevant, the solicitor may be unable to act further if disclosure would breach that other client’s confidentiality.

When is disclosure to other clients or third parties prohibited?

Where a solicitor holds confidential information that is material to the matter of a different (current or former) client with adverse interests, the solicitor may not act unless:

• There is no real risk of disclosure due to effective information barriers,
• Or the client who owns the confidential information gives informed consent.

If these conditions are not met, the solicitor must not act for the second client.

Key Term: information barrier
Organisational and technical measures designed to prevent confidential information from being shared between different teams or individuals in a practice.

Worked Example 1.1

Scenario:
You are asked to represent Client A in litigation against Client B, whom your firm previously represented. Confidential information from the earlier retainer may affect the new proceedings.

Answer:
You must not accept the new instructions unless:

• You can show effective safeguards (information barriers) are in place to prevent disclosure,
• Or you have informed written consent from Client B. Otherwise, you must decline to act due to the risk of breaching confidentiality.

Situations giving rise to conflicts

A frequent scenario is where a new client’s interests are adverse to a current or former client for whom confidential information is held.

What about acting for opposing sides?

If you hold material confidential information for a party who will be directly opposed to your new client, you cannot act unless the exceptions above apply.

Key Term: conflict of interest
A situation where a solicitor’s duties to different clients (or to a client and themselves) conflict or risk conflicting.

Worked Example 1.2

Scenario:
You acted in a business sale for Seller (Client X) last year. Now you are asked to act for a buyer in a dispute over that sale. Information about the negotiations would benefit both clients but may be confidential.

Answer:
If information from acting for Seller is material and confidential, you cannot act for the new Buyer unless you obtain Seller’s informed consent or erect an effective information barrier and there is no real risk of disclosure.

Anti-money laundering and confidentiality

Solicitors must breach confidentiality if obliged by anti-money laundering laws to report suspicious activity. This is a legal requirement, not an exception at discretion. Transmission of such information to the authorities is permitted by law and must be handled exactly as set out in relevant regulations.

Dealing with mistaken disclosures

If a solicitor receives documents or information by mistake (such as another party’s privileged documents), they must return them and not disclose or use them.

Practical steps when a conflict or risk of breach arises

• Identify the risk of conflict or exposure to confidential information at the start.
• Decline to act if a conflict exists (unless an exception applies).
• If acting, document any client consents or information barriers in writing.
• Always check for possible firmwide (not just individual) conflicts and risks.

Exam Warning

Exam questions often test where exceptions to the duty of confidentiality do or do not apply. Remember, the client's consent must be truly informed, and information barriers must eliminate real risk, not just be nominal formalities.

Revision Tip

Be prepared to explain the difference between confidentiality (all client information is protected), legal professional privilege (certain legal advice/communications are immune from disclosure), and the duty of disclosure to the client. Exam scenarios routinely mix them up.

Worked Example 1.3

Scenario:
A solicitor’s client, Bob, confides he plans imminently to harm himself. Bob expressly forbids the solicitor from telling anyone.

Answer:
The solicitor should first try to gain Bob’s consent to disclosure. If that is not possible, disclosure may be justified to prevent imminent serious harm. The solicitor should carefully document the reasons for disclosure.

Key Point Checklist

This article has covered the following key knowledge points:

• The duty of confidentiality applies to information about all current and former clients except where disclosure is required or permitted.
• Confidentiality survives the end of the retainer and after a client’s death.
• Disclosure is permitted only with informed consent, when required or permitted by law, or in rare cases to avert imminent serious harm.
• Solicitors must not act if they possess confidential, material information from another client with adverse interests, unless there is no real risk of disclosure or informed consent is obtained.
• Legal professional privilege is narrower than confidentiality and prevents compelled disclosure in litigation.
• The duty to disclose all material information to a client does not override the duty of confidentiality to others.
• Must be able to distinguish, and apply, confidentiality, disclosure, legal professional privilege, and information barriers in typical exam situations.

Key Terms and Concepts

• confidentiality
• continuing duty of confidentiality
• client affairs
• informed consent
• justified disclosure
• legal professional privilege
• information barrier
• conflict of interest