Written by Legal ethics - confidentiality language - professional conduct
Confidentiality is not a decorative label. It is a professional duty with serious consequences. The same is true of privilege and without-prejudice communications. But when technical language is used loosely, or in a way that appears to discourage scrutiny, the question is no longer only what the words mean. The question becomes whether legal language is being used to inform, protect and clarify, or to intimidate, confuse and close down legitimate challenge.
Snapshot
This article examines a public-interest concern raised by the source material: that vague references to confidentiality, privacy or without-prejudice protection can be misread by clients, former clients and litigants in person as a warning not to complain, disclose, seek advice or test a solicitor's conduct. The article does not treat the supplied case study as a finding. It uses it to explain the wider ethical issue: legal protections must be stated with precision, proportion and a clear route for lawful challenge.
Reader note: this article is public-interest commentary and practical legal education. References to a named law firm, a named solicitor and alleged misuse of confidentiality language are criticism and analysis based on the source material supplied. They should not be read as findings of fact, misconduct, dishonesty, unlawful conduct or professional wrongdoing by any named person, firm, regulator or public body unless established by a competent court, tribunal, regulator, ombudsman, inquiry, audit report or official decision.
The ethical problem
The legal profession depends on trust. Clients disclose sensitive information because they believe solicitors will use legal knowledge responsibly, keep proper confidences and explain the limits of any restriction. That trust is weakened when technical labels are used in a way that appears broader than the law permits.
Confidential, private and confidential, not for publication, privileged and without prejudice are not interchangeable phrases. They do different legal work. Some protect client information. Some protect legal advice. Some support settlement negotiations. Some may be no more than a request for discretion. If the difference is not explained, the recipient may treat every label as a threat.
That is the ethical concern. A solicitor may be entitled, and sometimes required, to protect confidential material. But a solicitor should not use vague wording to imply that a person cannot complain, cannot seek independent advice, cannot disclose wrongdoing to a proper body, or cannot challenge conduct that is said to be unfair. Accuracy is not a drafting preference. It is part of the professional discipline owed to clients, opponents and the administration of justice.
Core distinction. The concern is not the existence of confidentiality. The concern is imprecision: legal language that obscures the route for lawful scrutiny instead of explaining it.
Confidentiality as a real duty
The SRA Code requires solicitors to keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. SRA guidance also explains that the duty includes not misusing confidential information. That is a serious professional obligation and it should not be diluted.
But a serious duty should be stated seriously. A blanket reference to confidentiality does not explain whose information is protected, why disclosure is restricted, whether privilege is involved, whether redaction would answer the concern, or whether the material can be shared with an adviser, regulator, ombudsman or court. A proper explanation should help the recipient understand the legal position rather than merely warn them away from it.
This matters most when the disputed issue concerns the solicitor's own conduct. A client or former client may need documents to complain to the firm, approach the Legal Ombudsman, report a serious conduct concern to the SRA, seek independent advice, or respond to proceedings. Confidentiality may affect how that is done. It does not mean the question disappears.
The solicitor identifies the information, the protected interest, the legal basis, and any safe route for limited disclosure.
The solicitor uses a broad label which may make the recipient believe that complaint, advice or scrutiny is forbidden.
Without prejudice and overstatement
The without-prejudice rule has a proper purpose. It encourages parties to settle by protecting genuine settlement communications from being used as admissions on the merits of the dispute. That protection is important because many disputes would be harder to resolve if every concession made in negotiation could later be deployed at trial.
The difficulty is that the phrase is often treated as if it creates automatic secrecy. It does not. A heading is not conclusive. The context, purpose and content of the communication matter. The question is whether the communication was genuinely part of an attempt to settle a dispute, and also whether any recognised exception or different purpose is engaged.
For a litigant in person, the practical risk is obvious. If a solicitor marks correspondence without prejudice and then uses that label as if it prevents any later complaint or regulatory scrutiny, the recipient may simply stop. They may assume that the law prevents them from showing the material to anyone. The label may then operate less as a settlement protection and more as a barrier to accountability.
Identify whether the communication formed part of a genuine attempt to resolve an existing dispute.
Separate use on the merits from use to explain conduct, complaint handling, costs or alleged impropriety.
Obtain proper advice before relying on disputed material in court, complaint correspondence or public commentary.
The Burnetts case study
The source material refers to a dispute involving Burnetts Solicitors and a solicitor named Johnny Coulthard. It says that without-prejudice language was used in correspondence in a context where the complainant alleges pressure, procedural unfairness, an unfavourable settlement position, and wider concerns about the firm's previous involvement in Will drafting. Those are allegations from the supplied material, not findings made in this article.
The useful public-interest point is narrower than the allegation. If a solicitor uses without-prejudice or confidentiality wording in a contested setting, especially where there is an allegation that pressure was applied or that a professional conflict may exist, the wording should be capable of explanation. What was the legal protection being asserted? What was the basis for it? Was it used to protect settlement discussions, to protect client confidences, or to discourage further scrutiny?
That question does not assume misconduct. It asks for discipline. A firm confident in its position should be able to show the correspondence, the chronology, the conflict check, the complaint response and the basis for any confidentiality or without-prejudice assertion. If those records are absent or unclear, the concern becomes stronger because the public cannot see whether legal language was being used as a protection or as leverage.
Professional conduct issues
The SRA Principles require solicitors to uphold the rule of law and the proper administration of justice, uphold public trust and confidence, act with independence, honesty and integrity, and act in the best interests of each client. Those duties are broad, but they are not vague aspirations. They shape how solicitors should communicate when legal terminology may affect a person's practical ability to complain, seek advice or respond to a dispute.
The SRA Code also expects solicitors not to mislead clients, the court or others, and to be accountable for their decisions. That accountability point matters. If a solicitor chooses language that may materially affect a non-lawyer's behaviour, the solicitor should be able to justify the wording and the legal basis behind it.
The ethical failure, where it exists, is not simply the use of a label. It is the use of a label in a way that may create a false impression about legal consequences. A client should not be led to believe that all disclosure is prohibited if lawful complaint routes remain open. A litigant should not be led to believe that all without-prejudice correspondence is untouchable if the issue is alleged impropriety or a recognised exception. A former client should not be left unsure whether confidentiality is being protected for their benefit or deployed against their interests.
Technical terms should be used for their proper purpose and explained where the recipient may not understand the effect.
The restriction asserted should be no wider than the legal protection actually available.
The firm should be able to evidence why the wording was used and how the recipient's rights were protected.
The evidence test
A serious complaint about misuse of confidentiality language should be built from documents. The starting point is the exact wording used. The next step is the factual context: what was happening when the words were written, what the recipient was trying to do, and what practical effect the wording had.
The review should then separate the legal labels. Confidentiality, legal advice privilege, litigation privilege, without-prejudice protection, commercial sensitivity, data protection and contractual confidentiality are different concepts. A solicitor's letter may refer to one, several or none of them accurately. Without that separation, a complaint becomes too broad to test.
The final question is causation and consequence. Did the wording actually deter a complaint, prevent disclosure to an adviser, obstruct a response to proceedings, or cause the recipient to abandon a legitimate route? If so, that practical effect should be recorded with dates, correspondence and any steps the recipient avoided because of the wording.
The letter, email, settlement note or warning containing the disputed language.
The asserted basis: confidentiality, privilege, without prejudice, privacy, data protection or another restriction.
The dispute, complaint, negotiation or procedural step taking place when the wording was used.
Any decision not to complain, disclose, seek advice, publish or respond because of the wording.
Accountability routes
The first practical route is usually the firm's own complaints process. A complaint should ask for a precise explanation: what legal protection was being asserted, what information was said to be protected, and whether the firm accepts that the wording did not prevent lawful disclosure for advice, complaint or regulatory purposes.
If the issue is poor service, unclear communication, complaint handling, delay or cost, the Legal Ombudsman route may be relevant after the firm has had the opportunity to respond. If the issue is serious conduct, such as misleading communication, conflict, breach of confidentiality or taking unfair advantage, the SRA route may also need to be considered. The distinction matters because a service complaint and a conduct report are not the same thing.
The strongest complaint will avoid overstatement. It will not simply say that the words were intimidating. It will show the words, explain the legal concern, identify the practical effect and ask for a clear answer. That is how an ethical concern becomes an accountable record.
Source anchors
These source anchors support the regulatory and complaint framework discussed above. They do not prove the contested facts of the case study or establish professional misconduct by any named person or firm.
Primary regulatory statement on public trust, rule of law, independence, honesty, integrity and acting in each client's best interests.
Current rules on confidentiality, former clients, misleading communications, conflicts, accountability and justification of decisions.
Guidance on keeping client information confidential and avoiding misuse of confidential information.
Consumer-facing guidance on serious conduct concerns, evidence and what the SRA may investigate.
Guidance on complaining to the provider first, response times and the route for legal-service complaints.
The closing point
Confidentiality language should protect the administration of justice, not weaken confidence in it. The public-interest issue is precision. If a solicitor asserts confidentiality, privilege or without-prejudice protection, the wording should match the legal reality. Anything less risks turning legal protection into practical intimidation.
Confidentiality and conduct decision point
Get a free written assessment of the evidence route
Legal Lens can structure a preliminary written review of disputed legal language: what was said, which legal protection was asserted, what the documents show, and which complaint or escalation route fits the concern.
Separate the wording, legal label, chronology, practical effect and missing explanation.
Identify whether the issue is service, conduct, confidentiality, complaint handling or public-interest commentary.
Confidentiality, privilege, settlement language, complaint route and evidence gaps.
The records needed before complaint, escalation or public-interest commentary.
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