Confidentiality and Legal Professional Privilege
Legal Services > Confidentiality and Legal Professional Privilege
Confidentiality and legal professional privilege (LPP) are two of the most important protections in the solicitor-client relationship. SQE1 requires you to distinguish between them carefully - they are not the same - understand when each applies, and recognise their exceptions. This distinction catches many students out.
What Is Confidentiality and Legal Professional Privilege in SQE1?
Candidates often lose marks on SQE1 by treating confidentiality and legal professional privilege as the same thing — confidentiality is a professional duty that can be overridden, while LPP is a legal right that belongs to the client. Confidentiality is the solicitor's professional duty not to disclose information relating to a client's affairs without the client's consent. It is a professional obligation under the SRA Code of Conduct and applies to all information received in the course of the retainer, regardless of the source.
Legal professional privilege (LPP) is a legal right that protects certain communications from compulsory disclosure - even in court proceedings. It belongs to the client, not the solicitor, and cannot be overridden by a court order (except in limited circumstances). There are two types: legal advice privilege and litigation privilege.
These concepts work together in practice, but they are distinct, and understanding their differences is crucial to spotting traps in exam questions. LPP is also a key component of understanding Anti-Money Laundering obligations and how they interact with confidentiality.
This topic is closely linked to conflicts of interest and forms a key part of the Legal Services syllabus for SQE1.
Key Principles for SQE1
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Duty of Confidentiality: Paragraph 6.3 of the SRA Code of Conduct for Solicitors requires solicitors to keep client affairs confidential unless disclosure is required or permitted by law, or the client consents. Confidentiality survives the retainer—the duty continues after the solicitor-client relationship has ended.
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Legal Advice Privilege: Protects confidential communications between a client and their lawyer (acting in a legal capacity) made for the purpose of seeking or giving legal advice. The communication must be genuinely confidential and made for the purpose of obtaining legal advice.
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Litigation Privilege: Protects confidential communications between a client (or their lawyer) and third parties, made for the dominant purpose of existing or contemplated litigation. The key test is whether the dominant purpose (not merely one of several purposes) was preparation for litigation.
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The Iniquity Exception: LPP does not attach to communications made in furtherance of a crime or fraud (R v Cox and Railton (1884)). If a client is using the solicitor's services to commit a crime, the privilege is lost and the communication is not protected.
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Client Control of Privilege: LPP belongs to the client, not the solicitor. Only the client can waive privilege; the solicitor cannot waive it unilaterally. This is a frequent exam trap—understanding who holds the power is critical.
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Statutory Exceptions to Confidentiality: Solicitors must disclose information in certain circumstances, such as under the Proceeds of Crime Act 2002 (suspicious activity reports) and the Terrorism Act 2000. These statutory obligations override confidentiality but not privilege (unless the iniquity exception applies).
Exam tip
Confidentiality and privilege are not interchangeable. Confidentiality is a professional duty that can be overridden by statute (e.g., money laundering reporting). Privilege is a legal right that belongs to the client and cannot be waived by the solicitor unilaterally. Always ask: which concept applies, and can it be overridden? The iniquity exception pierces privilege when crime or fraud is furthered.
How This Appears in SQE1 Questions
SQE1 questions test the distinction between confidentiality (a professional duty) and LPP (a legal right). A common trap is treating them as interchangeable—they are not. Confidentiality can be overridden by statutory obligation (e.g., money laundering reporting); LPP generally cannot, except where the iniquity exception applies. Questions also frequently test whether litigation privilege or advice privilege applies to a particular communication, and who holds the right to waive.
A solicitor acting for a company in a contractual dispute commissions a report from an independent surveyor. The report is obtained specifically to assist in the litigation. The opposing party seeks disclosure of the report.
This is a classic SQE1 trap.
Common Mistakes Students Make
- Treating confidentiality and LPP as the same thing—confidentiality is a professional duty; LPP is a legal right that prevents compulsory disclosure.
- Forgetting that LPP belongs to the client, not the solicitor—the solicitor cannot waive it unilaterally or without express client authority.
- Confusing legal advice privilege (lawyer-client communications for advice) with litigation privilege (communications with third parties for litigation).
- Overlooking the iniquity exception—LPP does not protect communications made to further a crime or fraud.
Quick Summary
- Confidentiality is a professional duty (paragraph 6.3, SRA Code) to keep client affairs confidential; LPP is a legal right preventing compulsory disclosure.
- Confidentiality continues after the retainer ends; LPP belongs to the client, not the solicitor, and cannot be waived by the solicitor unilaterally.
- Legal advice privilege protects communications between client and lawyer for the purpose of seeking or giving legal advice.
- Litigation privilege protects communications between client or lawyer and third parties made with the dominant purpose of existing or contemplated litigation.
- Iniquity exception: LPP does not protect communications made in furtherance of crime or fraud.
- Statutory exceptions to confidentiality: POCA 2002 and Terrorism Act 2000 override confidentiality; court-ordered disclosure also overrides confidentiality.
Want to test this now? Try a few SQE1-style questions below before moving on.
Test Yourself
Test yourself
Quick check questions based on this article.
Question 1
Scenario
A solicitor acts for a company in ongoing commercial litigation against a former employee who is alleged to have misappropriated trade secrets. During a case review meeting, the company's managing director mentions in passing that the company recently discovered evidence that one of its own senior managers may have been complicit in the misappropriation by providing the former employee with access to restricted files. The managing director instructs the solicitor not to disclose this information to anyone, including the court, because the company intends to deal with the senior manager internally. The solicitor is aware that the court has made a standard disclosure order requiring the company to disclose all documents relevant to the issues in the proceedings. The solicitor has not yet reviewed the specific documents that may reveal the senior manager's involvement. The firm's litigation department recently circulated updated guidance on disclosure obligations under CPR Part 31. The managing director is a longstanding client and has referred several matters to the firm over the past decade. The client suggests that disclosure of this information would damage the company's reputation and commercial interests.
What is the solicitor's most appropriate course of action?
Question 2
Scenario
A solicitor is approached by a potential new client who wishes to instruct the firm in a commercial contract dispute. During the initial meeting, the potential client provides detailed information about the dispute, including the identities of the parties and the key terms of the contract. The solicitor conducts a conflict check and discovers that the firm currently acts for the opposing party in the same dispute. The solicitor informs the potential client that the firm cannot act due to a conflict of interest. The potential client then instructs a different firm. The solicitor who conducted the initial meeting is now asked by the partner handling the existing client's matter whether any useful information was obtained from the potential client during the meeting. The firm has 25 fee earners and a centralised conflict-checking system. The solicitor who conducted the meeting took detailed attendance notes.
What is the solicitor's duty regarding the information obtained from the potential client?
Question 3
Scenario
A solicitor acts for a client in a clinical negligence claim against a hospital trust. During the course of the retainer, the client provides the solicitor with medical records obtained from the client's GP. The records include a psychiatric report prepared following a previous unrelated incident. The hospital trust's solicitors serve a request for specific disclosure seeking all of the client's medical records, including psychiatric records, on the basis that the client's pre-existing mental health is relevant to the claim for damages for psychiatric injury. The client instructs the solicitor not to disclose the psychiatric report because it contains sensitive personal information about a previous episode of self-harm that the client does not wish to become known. The solicitor has reviewed the report and considers that it is likely to be relevant to the assessment of damages. The solicitor's firm has a specialist clinical negligence team with six fee earners. The claim is valued at approximately one hundred and fifty thousand pounds. The court has made standard disclosure orders and the matter is proceeding on the multi-track.
What should the solicitor advise the client about the psychiatric report?
Practice with full exam-style questions
Related Topics
- SQE1 Legal Services: Complete Guide
- Anti-Money Laundering and Financial Crime
- Duties to Clients and Client Care
- Conflicts of Interest
Practise Confidentiality and Legal Professional Privilege Questions for SQE1
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