SQE1 confidentiality: what you must know and how it is tested

SQE1 confidentiality and privilege questions test when a solicitor may disclose client information and which communications are protected from disclosure in legal proceedings. They also test how confidentiality ranks against duties of disclosure. Read it with the wider Legal Services guide.

The rules to apply

Section 6 of the SRA Code of Conduct for Solicitors requires you to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law, or the client consents. Where your duty to keep one client's information confidential conflicts with your duty to disclose material information to another client, confidentiality takes precedence. This leads to the question whether you can continue to act. Consent can be express or implied from the retainer, for example sharing information with colleagues who work on the matter.

Privilege is a separate rule of evidence and belongs to the client. Legal advice privilege protects confidential communications between lawyer and client made to give or receive legal advice. Litigation privilege protects confidential communications between the client or lawyer and third parties made for the dominant purpose of conducting litigation that is in progress or reasonably in contemplation. Privilege does not protect communications made to further a crime or fraud. In Three Rivers (No 5) the court limited who counts as the client for a company. If a privileged document is inspected by mistake during disclosure in proceedings, the other party may use it only with the court's permission (CPR 31.20). Without prejudice communications are protected for a different reason.

Disclosure can be required by law, for example by court order or money laundering reporting. It may also be permitted by law in narrow cases. Check the legal basis before disclosing and, in a firm, take advice from the compliance officer for legal practice (COLP). The SRA also warns about non disclosure agreements and about SLAPPs (abusive legal threats to silence critics). An NDA must not stop a person making a protected report to a regulator or the police, and the Code expects solicitors not to take unfair advantage of others. These warning notices can be examined.

Traps examiners use

• Confusing confidentiality (professional duty) with privilege (evidential rule).
• Assuming privilege survives where the communication furthers a crime.
• Applying litigation privilege when litigation is not in contemplation, or the dominant purpose is not litigation.
• Disclosing to help another client. Confidentiality takes precedence.
• Disclosing just because the client's spouse or opponent asks.

Worked question 1

Before any claim form is issued but when litigation is reasonably expected, Chen Ltd's solicitors ask an accountant to prepare a report. Its dominant purpose is to prepare Chen's defence. Is the report privileged?

• A. No, because privilege only covers lawyer and client communications.
• B. Yes, litigation privilege can apply to it, because litigation was reasonably in contemplation and the report was for that dominant purpose.
• C. No, because proceedings had not been issued.
• D. Yes, because anything an accountant writes is privileged.
• E. Yes, because it is a without prejudice document.

Answer: B. Litigation privilege extends to third party communications when litigation is in progress or reasonably in contemplation and their dominant purpose is the conduct of it. A is the rule for legal advice privilege only. C ignores 'in contemplation'. D and E are wrong.

Worked question 2

Ashdown LLP acts for Alder Ltd on buying a business. In an earlier retainer for the seller, a former client, the firm learned confidential information that would affect Alder's decision. What is the correct position?

• A. The firm must tell Alder, because it owes a duty of disclosure to Alder.
• B. The firm must not disclose the seller's information without consent, and must consider whether it can continue to act.
• C. The firm may tell Alder if it thinks the information is important.
• D. The firm can disclose because the seller is a former client.
• E. The firm must tell Alder only if Alder asks.

Answer: B. Confidentiality takes precedence over the duty of disclosure to another client. The firm may not disclose without consent and should consider whether it has a conflict and can still act. A, C and D ignore the priority rule. E is not the test.

Checklist before you move on

• Confidentiality duty or privilege (evidence rule)?
• Who is the client for privilege purposes?
• Legal advice or litigation: which privilege and what test?
• Crime fraud exception?
• Disclosure by law, permission, or consent?
• Does confidentiality outrank disclosure to another client?

Test yourself on more original questions in our SQE1 practice questions.

Questions

Related

• SQE1 Legal Services
• SQE1 practice questions: how to answer single best answer items
• SQE1 mock: how to time, pace and review it

Sources: SRA: SQE1 Assessment Specification (from 1 September 2026); SRA Code of Conduct for Solicitors; SRA: warning notices. Checked 10 November 2026.