Conflicts of Interest and Confidentiality

Start with the conflict that lives entirely inside the solicitor's own head. An own interest conflict occurs where a solicitor's duty to act in the best interests of a client conflicts, or risks conflicting, with the solicitor's own interests in that or a related matter. SRA Code of Conduct for Solicitors, RELs and RFLs paragraph 6.1 prohibits acting where there is an own interest conflict or a significant risk of one.

Notice what paragraph 6.1 does not say: it does not say "unless the client consents." This is the single most important structural fact about own interest conflicts, and it is tested precisely because it defies instinct. Most conflict rules in professional life are things a client can waive. This one cannot be waived.

There is no exception permitting a solicitor to act despite an own interest conflict, even with the client's informed consent. Advising the client to seek independent legal advice does not cure it either. If the conflict exists, the solicitor stops — full stop.

Why such an absolute rule? Because an own interest conflict corrupts the solicitor's judgment at its source. If a client conflict rule is about whose interests you're weighing, an own interest conflict is about whether you're capable of weighing anyone's interests but your own. No amount of disclosure repairs that; you cannot warn someone into trusting a scale you've already tampered with.

Where do these conflicts actually arise? Three recurring patterns:

• A solicitor holds a personal financial interest in the outcome of a client's matter — for example, advising on the sale of a company in which the solicitor holds shares.
• A client wants to bring a claim against the solicitor's own firm — perhaps alleging an earlier piece of work was negligent. Advising on that claim is advising on your own firm's liability.
• A personal or family relationship exists between the solicitor and another party to the matter — a solicitor asked to act for a client suing the solicitor's sibling, say.

Once you spot the pattern, the exam scenarios write themselves: any fact pattern in which the solicitor has skin in the game, independent of the client's interests, should trigger paragraph 6.1 analysis before anything else.

Contrast this with the client conflict of interest, which arises where a solicitor's separate duties to act in the best interests of two or more clients in the same or a related matter conflict, or risk conflicting. SRA Code of Conduct for Solicitors paragraph 6.2 prohibits acting where there is a client conflict or a significant risk of one — but, unlike paragraph 6.1, it does so subject to two limited exceptions.

This asymmetry is deliberate and worth sitting with: the SRA Code of Conduct definition of an own interest conflict has no equivalent exception process, unlike the client conflict definition. A client conflict is a conflict between two people the solicitor is meant to serve; in principle, with the right safeguards, both can still be served. An own interest conflict is a conflict between a client and the solicitor's own pocket, and no safeguard neutralises that.

The two exceptions to paragraph 6.2 are:

1. Substantially common interest. The clients have a substantially common interest in the matter. This requires a clear common purpose and a strong consensus among the clients on how it is to be achieved. The textbook illustration is joint instructions to draft mirror wills for a married couple — they want, essentially, the same outcome for each other, achieved the same way.
2. Competing for the same objective. The clients are competing for the same objective — a situation where two or more clients seek the same asset, contract or business opportunity that only one of them can achieve. Two clients bidding for the same piece of commercial property is the classic case. SRA guidance is explicit, however, that a public takeover bid falls outside the competing for the same objective exception — the dynamics and public-interest stakes of a takeover are treated as too different from an ordinary bidding contest for the exception to apply.

Both exceptions come bundled with the same three conditions, and the exam rewards knowing all three, not just one:

Both client conflict exceptions require: (1) all affected clients to give informed consent, given or evidenced in writing, to the solicitor acting; (2) the solicitor to put in place effective safeguards to protect each client's confidential information, where appropriate; and (3) the solicitor to be satisfied that it is reasonable to act for all the clients concerned.

Source: The Great Wall of China at Jinshanling-edit by Severin.stalder, CC BY-SA 3.0.

The safeguard requirement usually means an information barrier (sometimes called an ethical wall): separate teams of fee earners act for each client, with no sharing of documents and no discussion of the matter between the teams. Picture two client teams on different floors of the same building, bound by an instruction never to compare notes — that is the mechanism the rule has in mind.

Two everyday scenarios worth memorising because they recur constantly in practice questions: a solicitor acting for both a lender and a borrower in the same conveyancing transaction, and a solicitor acting for both a buyer and a seller in the same property transaction. Both are client conflicts (or significant risks of one) from the outset, and both need one of the two exceptions — plus consent, safeguards, and a reasonableness judgment — before the solicitor can act at all.

Finally, remember that conflicts are not always present at the start of the retainer. A solicitor must stop acting for one or more clients if a conflict of interest arises after the retainer has begun and no exception applies — joint executors of an estate, for instance, may start out aligned and later diverge as the administration proceeds, at which point the solicitor's position has to be reassessed. This is why SRA guidance advises that conflicts of interest should be identified and avoided proactively, and why solicitors should carry out a conflict check before agreeing to act for a new client or on a new matter — catching the problem before the retainer begins is far cheaper, ethically and practically, than untangling it afterward.

The duty of confidentiality requires a solicitor to keep the affairs of current and former clients confidential. SRA Code of Conduct for Solicitors paragraph 6.3 states that a solicitor keeps the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.

Two features of this duty catch students out because they contradict the ordinary intuition that professional obligations end when the relationship does:

The duty of confidentiality continues indefinitely after the retainer with a client has ended, and it survives the death of a client, passing to the client's personal representatives.

There is no sunset clause and no discharge on death. A solicitor who represented a client twenty years ago, now deceased, still owes that confidentiality — enforceable, in effect, by the estate. Consequently, a solicitor must not use a former client's confidential information for the benefit of a current client without the former client's consent — the fact that the first client is no longer paying the bills changes nothing.

Confidentiality is not the only thing a solicitor owes a client. The duty of disclosure requires a solicitor acting for a client to make the client aware of all information material to the matter of which the solicitor has knowledge — set out in SRA Code of Conduct for Solicitors paragraph 6.4. If confidentiality is about keeping secrets, disclosure is about not keeping a client in the dark on anything that matters to their own case.

These two duties are natural rivals, and the syllabus tests four specific circumstances in which the disclosure duty gives way:

1. Disclosure is prohibited by law — for example, where disclosure would risk prejudicing the prevention or detection of crime.
2. The client has given informed consent, given or evidenced in writing, to the information not being disclosed.
3. The solicitor reasonably believes that serious physical or mental injury will be caused to a client or another person if the information is disclosed.
4. The information is privileged and came into the solicitor's possession by mistake — the duty of disclosure does not require (or permit) the solicitor to exploit an opponent's slip.

The genuinely hard exam scenarios put confidentiality and disclosure into direct conflict across two different clients. A tension between confidentiality and disclosure arises where a solicitor holds information confidential to one client that is material to another client's matter. The solicitor owes Client A confidentiality over a fact; the solicitor owes Client B disclosure of anything material to Client B's matter; and the fact happens to be both.

There is no clever drafting move that discharges both duties simultaneously. Where a solicitor cannot disclose one client's confidential information to a second client because the first client has not consented, the solicitor may need to stop acting for the second client. The solicitor cannot half-disclose, and cannot simply prioritise whichever client feels more urgent — the only way out, absent consent, is to withdraw from one retainer.

A related but distinct problem is the former client conflict: this arises where a solicitor holds confidential information material to a current client's matter that is adverse to a former client's interests. SRA Code of Conduct for Solicitors paragraph 6.5 prohibits acting against a former client where the solicitor holds material confidential information about that former client, unless an exception applies. The two escape routes mirror the client conflict exceptions in structure:

• Effective safeguards eliminate any real risk of disclosure (an information barrier again, in substance); or
• The former client gives informed consent, given or evidenced in writing.

Compare this carefully with paragraph 6.2's client conflict exceptions: the tests share DNA (safeguards, written informed consent) but paragraph 6.5 is solving a different problem — protecting a former client's confidential information from a current client's adverse interest, rather than balancing two simultaneous clients' interests against each other.

Confidentiality is a professional conduct duty. Legal professional privilege is a related but distinct legal doctrine: it protects certain confidential communications between a solicitor and client from compelled disclosure — for instance, from being produced in court proceedings. Where confidentiality can yield to a court order or statutory compulsion, privilege is designed precisely to resist that compulsion.

There are two strands:

• Legal advice privilege protects confidential communications between a solicitor and client made for the dominant purpose of giving or receiving legal advice.
• Litigation privilege protects confidential communications and documents created for the dominant purpose of existing or contemplated litigation.

One ownership point is tested relentlessly because it trips people up: legal professional privilege belongs to the client, so only the client can waive it — not the solicitor. A solicitor who is tempted to disclose a privileged communication to defend their own reputation, or simply because it seems harmless, is disclosing something that was never theirs to give away.

Source: Money-laundering by No machine-readable author provided. ExplicitImplicity assumed (based on copyright claims)., CC BY-SA 3.0.

Confidentiality is a strong duty, but it is not absolute against Parliament. Money laundering reporting obligations under the Proceeds of Crime Act 2002 can require a solicitor to disclose information that would otherwise be confidential. Specifically, a solicitor who knows or suspects money laundering must submit a Suspicious Activity Report (SAR) to the National Crime Agency under the Act. This is a criminal-law compulsion that overrides the ordinary conduct-rule duty of confidentiality — failure to report, where the threshold is met, is itself an offence.

Source: National Crime Agency by Philafrenzy, CC BY-SA 4.0.

But even this override has a limit built back in: the Proceeds of Crime Act 2002 provides an exception from mandatory disclosure for information that is subject to legal professional privilege (the "privileged circumstances" exemption). Parliament chose not to force solicitors to breach privilege even in service of anti-money-laundering enforcement — reinforcing just how protected privilege is relative to ordinary confidentiality.

Two further, narrower overrides worth holding in mind:

• A solicitor's overriding duty to comply with the SRA's regulatory requirements can require disclosure of client information to the SRA despite the general duty of confidentiality — the regulator's ability to investigate misconduct cannot be defeated by a blanket confidentiality claim.
• A solicitor may disclose otherwise confidential information where necessary to defend the solicitor against allegations of misconduct made by or on behalf of the client — you are entitled to use what you know to answer an accusation, though only to the extent necessary for that defence.

Step back and the shape of the topic becomes obvious. SRA Principle 7 requires solicitors to act in the best interests of each client, and it underpins the duties of loyalty, confidentiality and conflict avoidance running through everything above. Own interest conflicts, client conflicts, confidentiality, disclosure, privilege, and the statutory overrides are not six unrelated rules to memorise in isolation — they are six different pressure points on the same foundational promise, tested from different angles. A solicitor must identify both an own interest conflict and a client conflict separately, precisely because each has different rules on whether the solicitor may nonetheless act (none, for the former; two narrow exceptions, for the latter).

Note, too, that these rules are not confined to individual conduct. The SRA Code of Conduct for Firms contains conflict of interest provisions on own interest conflicts and client conflicts with wording that mirrors the Code of Conduct for Solicitors, and a firm must have effective systems and controls in place to identify and manage conflicts of interest across the firm as a whole — a large firm cannot rely on individual fee earners each spotting conflicts in isolation; the obligation is institutional.

Finally, remember that these duties can bite before a retainer even exists. Confidentiality obligations can apply to a prospective client where confidential information is disclosed during an initial consultation that does not result in a retainer — the duty attaches to the information disclosed in confidence, not to the formal existence of a client relationship.

This is not an academic nicety. Failing to identify or manage a conflict of interest, or breaching the duty of confidentiality, can amount to professional misconduct and expose a solicitor to SRA disciplinary action — with sanctions ranging from a reprimand to being struck off the roll. Separately, a breach of confidentiality can give rise to a civil claim against a solicitor for breach of the equitable duty of confidence or breach of contract — the client (or former client, or their estate) can sue in the ordinary courts, quite apart from anything the SRA does. The regulatory and civil consequences run in parallel, which is precisely why proactive conflict checking, careful information barriers, and a clear-eyed sense of which duty governs which fact pattern are not optional professional hygiene — they are the mechanism by which the solicitor's basic promise to the client is kept.