Mr Jones’ daughter books the appointment with the solicitor, brings her father to the office and answers most of the questions for him. She pays the bill. A week later, she phones to ask what he decided about his will.
Everyone at the firm knows who she is. But does anyone know what her father has authorised them to tell her?
Confidentiality problems often begin this way. It’s not always about a dramatic lost laptop or misdirected email. Instead, a helpful person gradually becomes the main point of contact, and the distinction between the client and the person helping them becomes blurred.
The same happens with company directors, family businesses and estate administration. Someone arranges the work, supplies the information or pays the fees. Before long, the firm treats them as though all three things make them the client.
They do not.
The client, the contact and the person paying
The starting point is identifying who the firm represents on the particular matter. Paragraph 8.1 of the SRA Code requires solicitors to identify whom they are acting for. That obligation applies beyond work covered by the Money Laundering Regulations, and it’s about more than getting ID documents. SRA guidance: identifying your client.
For confidentiality purposes, the firm also needs to understand the relationship: who is receiving the advice, in what capacity, and who has authority to act on their behalf?
A parent funding an adult child’s divorce does not become the client by paying the invoice. A daughter organising her father’s appointment does not automatically acquire authority to receive his advice. Nor does permission to arrange appointments necessarily extend to giving instructions.
These distinctions should be settled while everyone is comfortable with the arrangement. Asking about authority after months of unrestricted updates is considerably harder.
In the example above, the solicitor should establish with Mr Jones what involvement he wants his daughter to have. He may welcome her at meetings and want copies of correspondence sent to her. Equally, he may want help with the administration while keeping his decisions private.
The Law Society’s guidance on vulnerable clients recommends seeking to discuss confidential information with the client alone. A private conversation gives the client an opportunity to express wishes that may be difficult to voice in front of a relative. Law Society: meeting the needs of vulnerable clients.
The resulting authority needs to be specific enough to use. A note on the file saying “Happy for us to speak to daughter” leaves too much unanswered. Can she receive routine updates, copies of documents or substantive advice? Is she authorised to relay instructions? Staff should be able to find the answer without reconstructing the first meeting.
The SRA’s confidentiality guidance makes the underlying principle clear: consent should reflect the client’s understanding of who will receive information, when and for what purpose. SRA guidance: confidentiality of client information.
“We act for the business”
The corporate equivalent is the director who regards the company’s solicitor as their own.
They may have founded the business, negotiated the retainer and instructed the firm for years. None of that, by itself, makes advice to the company personal advice to the director.
The SRA explains this distinction in its guidance for in-house solicitors: the organisation is generally the client, distinct from the individuals giving instructions or receiving advice. The guidance also recognises that the client may change from matter to matter within a corporate group. SRA guidance: identifying your client when working in-house.
Those distinctions deserve equal attention in private practice. “The Smith business” might mean a trading company, a holding company or the shareholders personally. The engagement should identify the relevant entity and the people authorised to instruct on its behalf.
Consider a director seeking advice about their own position during a board dispute. Before the conversation becomes substantive, the solicitor needs to clarify whether the firm is advising the company or being asked to advise the director personally. Familiarity must not leave the director believing that the company’s lawyer is protecting their individual interests.
An interest in the matter does not make someone the client
Estate administration presents another familiar source of confusion.
Where a firm is retained by executors to administer an estate, the beneficiaries do not automatically become its clients. A beneficiary may have a substantial financial interest, communicate frequently with the firm and regard the legal fees as coming out of “their” inheritance. The retainer still needs to be understood correctly.
A person may also wear more than one hat. An executor who is also a beneficiary may ask a question about administering the estate, then move into advice about their personal entitlement. The solicitor should recognise that change rather than assume that the existing retainer covers both.
Beneficiaries’ rights to information are a separate question. The immediate point is simpler: an interest in the outcome does not establish a solicitor–client relationship or an unrestricted entitlement to the solicitor’s file. The SRA’s confidentiality guidance itself distinguishes executor clients from beneficiaries bringing complaints. SRA confidentiality guidance.
Teach the moments when people should stop and ask
Confidentiality training is more useful when it starts with recognisable situations. A daughter wants an update on her father’s will. A director asks for advice about their personal position. A beneficiary requests the estate file. The person paying the bill wants to know what the client has decided.
These are the moments when staff need to recognise that a familiar relationship may conceal an unanswered question about authority.
Give fee-earners and support staff a few questions to work through: who is our client on this matter, in what capacity are we acting, and what authority does the person contacting us have? Being allowed to arrange appointments, receive advice and give instructions are different things. The file should make those distinctions clear.
Make it easy to check with the person responsible for the matter. Staff should feel comfortable saying, “Let me check what we’ve agreed with our client before I send that over.” Explaining this courteously is part of good client care.
Then test the arrangements on a few files. Does the engagement letter match the way the matter is actually being handled? Are third parties copied in because the client agreed, or because they appeared on the first email? Has a relative become the sole point of contact? Has advice to a company drifted into advice about a director’s personal affairs?
Authority should also be revisited when circumstances change. An arrangement that suited the client at the outset may need checking when a family disagreement develops, a director leaves or the work takes a different direction.
The practical test is whether a colleague picking up the file could tell whom the firm represents and what everyone else is authorised to do.
If the answer depends on “we’ve always dealt with her”, the confidentiality arrangements need another look.
Build confidence around confidentiality
Our practical confidentiality course helps law firm staff recognise the everyday situations where duties can become blurred, and make the right decision before information is shared. It is ideal for reinforcing consistent judgement across the whole team.
Take the confidentiality course — available as individual and group licences, and included for subscribers to the JBL Compliance learning platform.
