Interview preparation and conduct - Ethical considerations a...

Learning Outcomes

This article outlines ethical considerations and professional standards for preparing and conducting client interviews in SQE2, including:

• The distinction between confidentiality and legal professional privilege, when privilege may be lost, and the iniquity (crime–fraud) exception
• Identification and management of conflicts of interest (own‑interest and client conflicts), pausing interviews, and appropriate escalation or withdrawal
• Duties to the court, avoiding misleading conduct, and refusing to assist wrongdoing during interviews
• Ethical preparation steps: authority to act, conflict checks, CDD, AML red flags, secure environments, and informed consent to note‑taking and recording
• Use of third parties (eg interpreters), their impact on privilege and confidentiality, and practical safeguards
• Professional interview conduct: plain English, active listening, structured questioning, environmental control, and purposeful document handling
• Special considerations for vulnerable clients, capacity assessment, reasonable adjustments, and managing undue influence and support persons
• Handling ethical dilemmas: pausing, seeking supervision, documenting decisions, internal AML reporting to the MLRO, and awareness of Bowman v Fels
• Robust record‑keeping and follow‑up: clear file notes, client care letters, scope of retainer, costs, next steps, action plans, and data protection

SQE2 Syllabus

For SQE2, you are required to understand the ethical and professional conduct considerations relevant to client interviews, with a focus on the following syllabus points:

• the duties of confidentiality and the obligation to act in the client’s best interests in interviews
• the requirements for client care, including communication and explanations
• the professional rules on conflicts and on the decline or termination of instructions
• the identification of and response to vulnerable client needs
• the maintenance of records of instructions and advice for professional accountability
• the duty not to mislead the court and how it interacts with confidentiality and privilege
• client due diligence (CDD) and AML red flags in interview contexts, and when to escalate internally
• use of third parties (eg interpreters) and the impact on privilege and confidentiality
• the assessment of capacity to give instructions and steps where capacity is in doubt
• data protection, secure environments (including remote interviews), and informed consent to note-taking

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are your obligations if a client discloses information about a crime during a legal interview?
2. What is the principal difference between a duty of confidentiality and legal professional privilege?
3. How should you handle a situation where you suspect a conflict of interest during a client interview?
4. What actions must you take to ensure professional standards when advising a vulnerable client during an interview?

Introduction

Interviews are a core skill for solicitors and barristers. At SQE2, you must be able to conduct client interviews professionally, demonstrating excellent client care and a sound knowledge of ethical rules. Professional credibility, client trust, and regulatory compliance all depend on meeting the high standards set out in the SRA Principles and the SRA Code of Conduct for Solicitors.

Ethical interviewing begins before the meeting (conflict checks, AML screening, supervision) and continues afterwards (accurate notes, prompt follow-up, clear client care letters). During the interview, you balance duties: to act in the client’s best interests, to keep affairs confidential, and to uphold the proper administration of justice. You must listen actively, stay objective and non-judgemental, and communicate in plain English, tailoring your approach to the client’s needs and vulnerabilities.

Conflicts, Confidentiality, and Duties in Client Interviews

Understanding legal and ethical duties is essential for effective, lawful interviewing. All professional interactions with clients or potential clients—whether in person, by video, or on the phone—are regulated by strict rules.

Key Term: duty of confidentiality
A solicitor or barrister must keep client affairs confidential, not disclosing information without client consent, unless law or regulation requires it.

Key Term: legal professional privilege
Communications between a lawyer and client made for the purpose of legal advice or litigation are protected from disclosure, except in limited cases.

Key Term: conflict of interest
A situation where the lawyer’s duty to one client conflicts with their duty to another client or their own interests. Must be identified and managed or avoided.

Failing to protect confidentiality or manage a conflict may result in disciplinary action and affect your client’s case.

Confidentiality is broad. It applies to anything relating to the client’s affairs and survives the retainer. Disclosure is permitted when the client consents, when required or permitted by law (for example, a court order or certain statutory obligations), or where the iniquity (crime–fraud) exception removes privilege for communications made to further a crime or fraud. Privilege is narrower and belongs to the client, covering legal advice and litigation communications. It can be lost if unnecessary third parties are present, unless their presence is reasonably necessary to obtain legal advice (eg an interpreter). Even where privilege applies, you still must not mislead the court.

Conflicts may be:

• own-interest conflicts (your personal or firm interests clash with the client’s)
• client conflicts (acting for two clients with competing interests or where there is a substantial risk of conflict)

At interview stage, halt if a potential conflict emerges. Do not take instructions or receive confidential information beyond what is necessary to identify the issue, and escalate promptly under firm procedures. Continuing without resolving a conflict risks regulatory breach and prejudice to one or more clients.

Your duty to the court includes not knowingly or recklessly misleading the court. This may constrain how you can put the client’s case if, for example, the client proposes giving false evidence. Your role is to advise, present the client’s case properly, and refuse to assist any deception.

Preparing Ethically for Client Interviews

Effective preparation starts with checking for potential ethical issues.

• Confirm you have the authority to act for the client.
• Review the file for possible conflicts. If you suspect a conflict, do not proceed without guidance from a supervisor or compliance officer.
• Conduct client due diligence (CDD) where required and consider AML red flags. If suspicious, follow internal reporting procedures and avoid “tipping off.”
• Clearly state your role and the limits of your instructions at the outset.
• Set up a confidential environment—ensure discussions are private and interruptions are minimized.
• If a translator or third party is needed, explain confidentiality and record their involvement.
• Explain the impact of any third party’s presence on privilege and consider meeting the client alone for at least part of the interview where appropriate.
• Agree how notes will be taken and stored, seeking the client’s consent to note-taking and any recording.
• Ensure secure technology and identity verification for remote/video interviews.
• Bring all relevant documents and a plan of topics to cover (not a rigid script). Avoid pre-judging: remain flexible and open to the facts as the client presents them.
• Be clear about potential costs, funding options, timescales, and next steps, so the client understands what to expect.

Lawyers must also ensure they are competent to handle a matter, especially with vulnerable clients. If specialist knowledge or reasonable adjustments are required, arrange it before or as soon as practicable after the first meeting.

Conducting the Interview: Professional Standards

Throughout the interview, you are expected to communicate clearly, listen actively, and remain objective.

• Use plain English, avoiding unnecessary legal terminology.
• Ask open questions, then funnel to specifics.
• Take a note of instructions, advice given, and decisions made.
• Ensure your client understands the advice, costs, and next steps.

Key Term: client care
The obligation to provide clear communication, competent service, and relevant information so the client can make informed decisions.

Combine active listening with structured questioning. Start broadly (“Tell me what brought you here today”), then narrow using focused, closed or semi-closed questions to clarify dates, names, amounts, and sequences. Use summaries and signposts to check understanding (“So far I’ve understood that… Is that right?”). Be alert to non-verbal cues and emotional content; acknowledge feelings and adjust pace. If the client is tired or distressed, take breaks.

Manage the environment. Minimise noise and interruptions, and position seating to facilitate conversation. At court or in public settings, find the most private space available and reassure the client if circumstances are less than ideal. Introduce anyone present and clarify their role. If you need a private word with an opponent or court staff, explain to the client where you are going and why.

Handle documents and visuals purposefully. Guide the client through key documents, reading out important passages, and check comprehension. Use simple sketches or maps to clarify locations or sequences when helpful. Avoid overwhelming the client with papers or images; remove materials from view once their purpose is served.

Record critical details contemporaneously, using clear, legible notes that another fee-earner could pick up if necessary. Seek explicit permission to note, and explain that not every word is recorded—only the essentials.

Do not judge or dismiss client concerns. If a client is vulnerable, distressed, or has special needs, modify your questioning style and pace, and check comprehension regularly.

Maintaining Professional Boundaries

You must avoid giving personal opinions outside your legal specialist knowledge, do not promise an outcome, and always respect the client’s autonomy.

Where appropriate, explain legal limitations, options, and risks, ensuring the client’s decisions are voluntary and informed. Remain non-judgemental and objective. Your task is to identify strengths and weaknesses, explain the likely legal framework, and help the client decide on a course of action. Do not rehearse testimony or “coach” a witness; do not discuss the case with a witness during their evidence. Keep dealings with opponents courteous and transparent, and tell your client before stepping aside to confer with others. Maintain appropriate professional distance even when clients express strong gratitude or distress.

Handling Ethical Problems in the Interview

If an ethical dilemma arises—such as disclosure of criminal activity, evidence of dishonesty, or a potential conflict—stop the interview and seek guidance before proceeding.

• Do not assist in misleading the court or fabricating information. If a client asks for such assistance, explain your obligations and refuse.
• If a client indicates an intention to destroy documents or conceal evidence, advise against it, explain the legal consequences, and document your advice. Do not take possession of or conceal suspect items yourself.
• If you suspect money laundering or terrorist financing in regulated work (eg, conveyancing, tax, company transactions), follow your firm’s AML policy: make an internal report to the nominated officer/MLRO and do not “tip off” the client. Depending on the context, you may need to suspend work pending guidance or consent. In the ordinary conduct of contested litigation, note the effect of Bowman v Fels: routine litigation steps are not treated as “arrangements” for these purposes, but the iniquity exception still applies to privilege.
• If capacity is in doubt, pause and consider whether the client can give instructions; if not, seek appropriate assessment and consider involving a litigation friend or other support in line with procedural rules.
• Keep a record of ethical dilemmas encountered and the actions taken. Seek supervision or use professional ethics helplines where necessary.

Special Considerations for Vulnerable Clients

Interviews may include clients affected by language barriers, mental health issues, age, or distress. Take extra care to:

• Allow adequate time
• Provide access to interpreters or support persons as needed
• Confirm understanding at each stage
• Adjust your approach to meet individual needs

Key Term: vulnerable client
Someone who may be at increased risk of misunderstanding, harm, or disadvantage in legal processes due to personal circumstances.

Be alert to capacity issues. Capacity is decision-specific and time-specific; support the client to decide by simplifying information, using visuals, or taking breaks. Where a third party accompanies the client, assess whether their presence is helpful or exerts undue influence. Consider speaking to the client alone to confirm instructions. If the client lacks capacity to litigate, take steps consistent with the relevant procedural framework, including identifying a litigation friend. Ensure reasonable adjustments for disability and be sensitive to trauma.

Professional Record-Keeping and Follow-Up

Maintain a clear, factual, and contemporaneous record of:

• the client's instructions and information provided
• advice given and options explained
• client questions, concerns, and decisions
• any ethical difficulties and their resolution

If the interview is conducted without another legal professional present, ensure records are especially comprehensive.

File notes support professional accountability and may be needed for evidence of instructions or advice if challenged. Good notes should show who attended (including any interpreters/supporters), location and mode (in person/remote), start and end times, key facts, advice and risk warnings, costs information, agreed actions, and deadlines. Follow up promptly with a written summary (client care letter or attendance note) confirming the scope of your retainer, estimated costs and timescales, funding arrangements, and next steps for you and the client. Use a simple action plan to allocate tasks, set target dates, and monitor progress. Store records securely and in line with data protection requirements.

Worked Example 1.1

Scenario:
During an interview, your client admits to disposing of evidence in a pending criminal case and asks you not to disclose this. What should you do?

Answer:
Maintain confidentiality—you cannot disclose the admission without client consent. However, you must not mislead the court or assist your client to present false evidence. Advise the client of your duties, including that you cannot put forward a positive case that all evidence was properly retained. Document the discussion. If the client intends to mislead the court, you must refuse to act on that basis and consider whether you can continue to act.

Worked Example 1.2

Scenario:
You recognize that your firm acts for both a divorcing individual you are interviewing and, in another department, the spouse. What is your duty?

Answer:
Stop the interview and notify your supervisor or compliance officer. You must not act for both parties if a conflict exists. If a conflict cannot be resolved, you should withdraw in accordance with firm policy and professional rules. Do not take further confidential instructions until the position is clarified.

Worked Example 1.3

Scenario:
A client insists on proceeding without an interpreter, but you notice they struggle to understand your questions. What steps should you take?

Answer:
Assess whether the client can properly instruct you. If you doubt their comprehension, recommend an interpreter. If the client refuses and cannot fully engage, consider suspending the interview until adequate support is arranged. Explain confidentiality to any interpreter engaged and record their details in your notes.

Worked Example 1.4

Scenario:
In a conveyancing interview, the client says they will pay the purchase price largely in cash from “unreported takings” and asks you not to mention this to anyone.

Answer:
Recognise an AML red flag. Do not proceed with transactional steps. Follow your firm’s AML policy: make an internal report to your MLRO without tipping off the client. You may need to suspend the retainer pending guidance or consent and, if appropriate, decline to act. Explain only that you are unable to progress the matter at this time and that you will revert; do not disclose that a report has been made.

Worked Example 1.5

Scenario:
The client brings a friend into the initial interview “for support.” Sensitive facts are discussed. Later, litigation privilege is claimed over the interview content.

Answer:
Privilege may be compromised if an unnecessary third party was present. At the outset, explain the impact of third-party attendance on privilege and consider seeing the client alone for key instructions. Where a third party is reasonably necessary (eg an interpreter), privilege generally remains. Record who attended and why. If privilege is disputed later, your clear note will assist.

Exam Warning

Interviewing and advising a client without checking for conflicts of interest beforehand is a common error. Always confirm the absence of conflicts using firm procedures before every interview—failure to do so can lead to professional discipline. In addition, be alert to privilege risks when third parties attend interviews and to AML “tipping off” restrictions in regulated work.

Revision Tip

For SQE2, be able to spot common ethical interviewing pitfalls. Practise with realistic scenarios, and ensure you know when to seek help before proceeding. Practise explaining confidentiality versus privilege, and how you would pause an interview and escalate an AML concern.

Key Point Checklist

This article has covered the following key knowledge points:

• The duty of confidentiality applies at all stages of interviewing, except where law requires or permits disclosure; privilege is narrower and can be lost if unnecessary third parties are present.
• Conflicts of interest must be checked and, if present, managed or result in declining instructions; stop taking instructions until the position is resolved.
• Professional standards in interviews require plain language, objectivity, structured questioning, and comprehensive records, with clear action points and timescales.
• Client care includes ensuring understanding, providing clear advice (including risks, costs, and options), and respecting autonomy.
• Special provisions apply when interviewing vulnerable clients, including adjustments, capacity considerations, and managing undue influence.
• Ethical dilemmas during interviews require you to pause and seek guidance before continuing; do not assist wrongdoing or mislead the court.
• AML awareness is essential in regulated work: escalate suspicions internally and avoid tipping off; consider whether to suspend or terminate the retainer.
• Maintaining thorough file notes and timely follow-up letters is essential for accountability, risk management, and compliance.

Key Terms and Concepts

• duty of confidentiality
• legal professional privilege
• conflict of interest
• client care
• vulnerable client