B1.6: Confidentiality Generally
Rule B1.6 states:
"You must maintain client confidentiality. This duty is not terminated by the passage of time. You must also supervise your employees to ensure that they keep client matters confidential. Only the client, Acts of the legislature, subordinate legislation or the court can waive or override the duty of confidentiality. The duty does not apply to information about any crime a client indicates they will commit."
The obligation to supervise extends to all outsourced providers of your business operations and services.
Confidentiality is exercisable by the client and can be waived by the client. It covers matters which are actually confidential and not in the public domain. For example, the contents of a document which has been registered in a public register can never be confidential, although the circumstances in which it was entered into, the advice given to the client and the instructions which were received from the client will be confidential so far as not set out in the document.
Joint clients
In a circumstance where you act for more than one individual or corporate entity in the same matter, there is no confidentiality between them as they form the larger client group. Examples of occasions where you are acting for client groups include when you are acting for two people buying a property together or acting for a group of executors in the administration of an estate.
Any information disclosed to you by one of the members of the group is deemed to be known by the other(s). Accordingly, any information provided to you by any one member of the group would be able to be shared with the other(s).
If one of the members of the group provides you with information and then asks you not to disclose that information to the remainder of the group, you would not be able to agree to that request. If such a situation were to arise, you would require to disclose the information to the remainder of the group. Depending on the circumstances you may, having disclosed the information to the group, then require to withdraw from acting.
Confidentiality and Conflict of Interest
Confidentiality will inevitably come into play when considering whether there is a conflict of interest in acting for a particular client or clients. Some examples are:
Party in dispute with former client
Where a practice unit used to act for one client and is now being asked to accept instructions from another party with whom the original client is in dispute, you may not be able to act for the prospective client.
If the practice unit is in possession of confidential information relating to the original client that would be of relevance to the prospective client, you would be unable to accept instructions from the prospective client.
Instructions from the prospective client would not be able to be accepted as the duty of disclosure to the prospective client, if onboarded, would be unable to be met given the continuing duty of confidentiality owed to the original client.
Solicitor moving practice unit
A solicitor moving from one practice unit to another must ensure that their duty of confidentiality to their former clients at the previous practice unit is maintained.
In the event that a solicitor, having acted for a client at a previous practice unit, moves to a new practice unit which is acting on the other side of a matter with the solicitor’s former client, the solicitor must not disclose any information to the new practice unit that is confidential to their former client.
It is not appropriate for a solicitor who has acted on one side of a matter at one practice unit to act on the other side of the same matter at a different practice unit.
The incoming solicitor and the new practice unit should consider whether it is appropriate for them to remain acting. That consideration should include an analysis of whether sufficient information barriers could be put in place to ensure no breach of confidentiality occurs. The incoming solicitor and the new practice unit may find Lord Brailsford’s Opinion in the petition of Kae Alexandra Tinto or Murray a useful starting point for those considerations. As the sufficiency of the information barriers is ultimately a question of law, the Society cannot offer advice on what would suffice in any one case.
It is a matter for the solicitor to determine, at least in the first instance, whether confidentiality has been breached and/or whether a conflict has arisen.
Confidentiality and Legal Professional Privilege
Confidentiality can be distinguished from Legal Professional Privilege (“privilege”). Confidentiality is a Standard of Conduct the Society requires solicitors to provide to their clients. Privilege is a matter of law.
In considering what information is confidential, it is likely that a solicitor will also require to consider what information is privileged. This is particularly relevant in a scenario where the duty of confidentiality may be overcome.
Note - Our Professional Practice team are able to provide advice to solicitors who have questions regarding the duty of confidentiality solicitors owe to their clients, however they are unable to provide advice on matters of law, including what information may be privileged.
The team are also unable to provide advice on whether a particular statute or court order overcomes a solicitor’s duty of confidentiality, as it is a matter for the solicitor to be satisfied as to the legal position.
The following are some examples of situations where confidentiality may be overcome:
Police enquiries and/or Production orders/search warrants
You should not hand over your file or papers to the Police or the Procurator Fiscal unless they have obtained a warrant or a Production Order.
If you are presented with a Production Order by the police you should pay close attention to what is called for in such an order and only deliver that. If asked to give a statement simply confirming that this is the file/these are the papers called for in the Order, you should do so.
If you are asked to give a statement to the Police or the Procurator Fiscal in relation to a matter where the information sought is not already in the public domain (for instance having been disclosed in open court or published in a public register) but is actually confidential, you should offer to be precognosced on oath before the sheriff.
If you answer a question on the direction of the court you would not be subject to a complaint of breach of confidentiality, as the matter is fundamentally one of law not of practice.
Statement to other solicitors
You may be asked to give a statement to another solicitor. If that solicitor is instructed by your former client, you can treat the request as a waiver of confidentiality by the client and give a statement.
You can also hand over copies of documents, but should seek a written mandate from the former client before handing over original documents.
If the request comes from a solicitor who does not act for your former client you should decline the request unless and until you have the former client's authority to comply with it. It would be prudent to have such authority in writing.
Solicitor cited as a witness
If you are cited as a witness, you must attend court.
You can answer questions posed by the solicitor or advocate acting for your client or former client.
If you feel however that the answer to a question from a person acting for any other party would breach client confidentiality, you should seek directions from the sheriff or judge and follow those.
If you are required to answer a question, you should do so. Whether the evidence is admissible is a matter for the court to determine.
Criminal cases
If you are a Crown witness in a criminal case and are asked to give a statement to a solicitor acting for a co-accused of your former client, you can only confirm the information that you have previously provided during a precognition on oath (see Police enquiries and/or Production orders/search warrants above). Absent authority from your client, you would be unable to provide any additional information. It would be prudent to have such authority in writing.
If your former client does not waive confidentiality, it would be prudent to contact the Court in advance to advise them that you are to be called as a Crown witness and may require to seek direction from the sheriff or judge.
Civil cases
If you are called as a witness in a civil case, it is appropriate to ask the party citing you for notification of what they wish you to speak to. This will allow you to consider questions of confidentiality.
If you are cited by a solicitor acting for your former client, you must attend court and can answer questions posed by the solicitor or advocate acting for your former client. You can treat the questions being asked as a waiver of confidentiality by the client and answer those questions freely.
If you are cited by your client’s opponent or a former client’s opponent, you should, where possible, ask your client or former client as to whether they wish to waive confidentiality in this respect.
If your client or former client does not waive confidentiality, then it would be prudent to contact the Court in advance to advise them that you are being called as a witness by somebody who was not your client and you may require to seek direction from the sheriff or judge.
Specification of Documents
If you are served with a Specification of Documents, you should comply with it. You should be careful to comply with the terms of the Specification of Documents and only provide what is required of you. This will undoubtedly include considering whether issues surrounding confidentiality and legal professional privilege arise.
Ultimately, compliance with the Specification of Documents is a legal matter and you will require to satisfy yourself of the legal position.
Crime about to be committed
You may receive information from your client about a crime which they are threatening to commit. In those circumstances, the client is not entitled to confidentiality and, as stated in the rule, you would be entitled to draw the circumstances to the attention of the authorities.
You should note that there is no positive obligation contained in the practice rules requiring you to do so. If you do decide to report the circumstances to the authorities, you should withdraw from acting for the client in respect of all matters in which you act for the client.
Insolvent client
You may be asked to produce information to a trustee in sequestration, receiver, administrator or liquidator.
If you acted for the bankrupt or the company which has gone into administration or liquidation, the trustee, administrator or liquidator steps into the client's shoes and is entitled to all the papers which you hold for the client - although in a sequestration only so far as relating to the bankrupt's financial affairs.
You do not need to take your client's instructions on whether such information should be given.
Where you acted for a company, you should be careful to separate out (and not divulge) information in relation to individual directors or shareholders - unless of course the same person has been appointed trustee to the individual directors or shareholders.
Statutory Requirements
Some statutes overcome a solicitor’s duty of confidentiality.
If such a statutory obligation exists or the person seeking the information has statutory authority for the request, you should comply with it. You require to satisfy yourself, as a matter of law, as to whether the statute overcomes your duty of confidentiality.
Third Party Complaints to the Scottish Legal Complaints Commission (SLCC)
The Society’s Guidance related to Rule B5 re responding to third party complaints sets out circumstances where confidentiality may be overcome.
Solicitors working in-house
Confidentiality (and privilege) are equally important considerations for solicitors working in-house.
Our Guide for In-house lawyers explores this in more detail. It includes some practical information as to how in-house solicitors can maintain privilege.
Confidentiality and a client who is deceased
When a client dies, their executor steps into the client’s shoes.
An executor is therefore entitled to access information that the client would have been entitled to in life (for example, the deceased’s Will file).
Concerns about a client
Whilst there is no positive duty contained within the practice rules to report concerns regarding a client’s mental health or welfare, information and assistance on dealing with these concerns can be found at Lawscot Wellbeing - client wellbeing | Law Society of Scotland.
GDPR and Subject Access Requests
The Society has produced a Guide to GDPR specifically for practice units.
As GDPR is a matter of law, not a Practice Rule, you would require to be satisfied as to the legal position. As above, the Professional Practice Team are unable to provide advice on matters of law. You may wish to refer to the information produced by the Information Commissioner’s Office if you have any doubts as to your legal obligations.
Last updated 28 May 2026