We are delighted to bring you a new video series focusing on client confidentiality in legal practice. This series will explores the regulatory, ethical, and practical challenges surrounding the duty of confidentiality, particularly as it applies to law firm operations and professional conduct.
In this first episode, Partners Nick Leale, Andrew Pavlovic and David Fisher discuss the risks and regulatory scrutiny associated with partner and team moves, examining recent SRA decisions, common pitfalls, and the tension between commercial objectives and compliance obligations during lateral transitions. Watch the video, view the transcript, and see below for further details.
- What has prompted recent regulatory action? The SRA has recently rebuked solicitors for transferring client materials without consent, breaches of Rule 6.3 and Principle 2, even when done inadvertently.
- How serious can it get? A non-qualified fee earner received a Section 43 Order after emailing confidential client and firm data to themselves before a move – deemed by the SRA as a serious ethical breach.
- Where is the line between demonstrating commercial value and breaching confidentiality? Partners must balance showcasing their practice during moves with strict confidentiality obligations. Business plans and interviews often risk accidental disclosure of confidential information.
- Is information in the public domain safe to share? Ambiguity around what is truly public can lead to over-disclosure. Even sharing team member details may breach ethical standards.
- Can you share client information during a move? Unlike firm mergers, individual or team moves do not allow for special provisions. Anonymisation and reliance on public sources are essential.
- What does the hiring firm need to know – and avoid? While firms want insight into a prospective partner’s client base, oversharing can trigger regulatory breaches and reputational harm.
- What happens if confidentiality is breached? Former firms may issue formal claims, seek undertakings, or pursue legal action. Financial penalties and reputational damage are real risks.
- Risk factors for fast transitions: When a move happens quickly, this can often lead to careless disclosures or premature client contact, heightening regulatory exposure.
- Ethical complexity and balancing competing duties: Partners must juggle public trust, client confidentiality, and acting in clients’ best interests – often with conflicting pressures.
If you have any questions arising from this recording or if you would like to discuss client confidentiality in more detail, please contact Partners Nick Leale, Andrew Pavlovic and David Fisher.
Nick Leale is described by Legal 500 UK as delivering “..extensive knowledge in a thoughtful, measured manner that non-legal people can understand – he also fully considers the human factors played out within regulatory frameworks and reflects those considerations when advising those undertaking investigations.”
Andrew Pavlovic is recognised by Legal 500 UK 2025 as a “Next Generation Partner” and Chambers and Partners UK 2025 as “Up and Coming” in the field of Professional Discipline: “The go-to lawyer for any professional disciplinary matter”, “Andrew Pavlovic is a creative thinker who is persistent in getting the best result for his clients.”
David Fisher is ranked by Chambers & Partners UK 2025 in Band 4 for Partnership (Contentious): “David knows the market and inspires confidence. He supported me very well.” “David is very thorough.”
CM Murray LLP is recognised by Legal 500 UK 2025 in the area of Professional Discipline: “Dependable partner-led support, genuine understanding of clients, and extremely responsive.”
Nick: Hello and welcome to the first of the CM Murray’s thought leadership discussions on the growing area of risk for partners and law firm leaders that stems from that key part of the Code of Conduct and indeed of the SRA principles that requires all solicitors to keep the affairs of their clients confidential unless they have client consent. I’m a regulatory partner at CM Murray. I used to be a GC at a US law firm in London and also a former SRA prosecutor and specialist in professional regulation. Also here is my partner, Andrew Pavlovic. Andrew has a lifetime of experience behind him of both prosecuting and defending those who encounter the regulatory arm of the SRA. And my partner, David Fisher. David is of course a nationally prominent partner in employment and partnership law. He focuses on advising senior executives and global corporations on partner-team moves and lateral partner hires and issues arising from restrictive covenants and the like.
In many ways, of course, the confidentiality part of the code is straightforward with regard to compliance. But at the moment of partner and team moves in, of course, what is now a buzzing and fluent partner labour market, the issue, of course, becomes more relevant and perhaps more challenging when it comes to regulatory compliance. And it perhaps isn’t something that’s occurrs too much to people when engrossed in the commercialities of a personal or group move, where individuals also have the care of their long-cultivated clients in mind as well. But the regulatory outlook on this issue appears to be evolving at some pace as those who keep an eye on the flow of SDT decisions will know, recent decisions have rather prompted various discussions in relation to it. And Andrew, you specifically have some thoughts, I think, on those recent findings at the SDT and SRA.
Andrew: Yes,there have been a couple of SRA decisions, both involving solicitors who removed client confidential information from their own firm without the permission of the client or the firm, and then shared them with colleagues at their new firm. And although we don’t know the precise details because the decisions are quite short and you tend to only get a rough outline, a common scenario we might see is, for example, when people take material across with them to a new firm because they think they have a good precedent bank or good examples of documents that they might want to use when they arrive at their new firm. The request then might be made, has anyone ever done one of these? Oh yeah, I’ve done one of those before at my old firm, here it is. Now that’s where someone might be thinking, fairly innocently, but has still breached client confidentiality by taking material across from their old firm. we don’t know the precise circumstances of these cases, but that could be something that happened.In both instances, the SRA rebuked them. They found that the breach of the Rule 6.3, the requirement to keep client affairs confidential, they also found a breach of Principle 2, which is the requirement to uphold public trust and confidence in the profession. And they were given rebukes on the basis that both individuals had been reckless as to their regulatory obligations but hadn’t intended any harm that would support the view that this was sort an inadvertent thing where they hadn’t perhaps considered what they were doing rather than a deliberate intention to take confidential information to another firm for their own advantage. So that’s the two decisions where rebukes were given. There’s also been another decision about a month or so later where a fee earner who was not a qualified solicitor was given what’s called a section 43 order where they’re prohibited from working from law firms without the SRA’s permission. In that case, the fee earner had sent around 50 emails to his personal email address shortly before he left his firm, containing both firm and client info, so client confidential information, but also information confidential to the firms, such as templates and workflow documents. He then deployed his information in his new role at another firm.
In the SRA’s decision notice there, they went further and said that this wasn’t just reckless, this demonstrated a lack of integrity and a serious error of judgement. They actually said that this wasn’t simply naïve or foolish, but the conduct demonstrated a serious departure from the ethical standards that were expected. So in that case, they took a much more stringent view. That’s partly, I think, because the Section 43 regime is a little bit more limited in terms of scope of what they can do. But it also seems that they took the view that this was a deliberate attempt to use information that had been removed from another firm. I think the distinction there was the intent to use and the actual deployment of that information as well.
Nick: So it was more what sat behind it because on the face of it, you have senior people being rebuked and a more junior member of the profession, in effect, being removed from the profession.
Andrew: So I think that that is the distinction, partly the fact that section 43 is a more of a blunt tool, bit more of blunt instrument. But secondly, the intent they said was there and therefore this wasn’t just a recklessness, this was actually a lack of integrity.
Nick: So David, there’s a particular current context to this issue. It’s fair to say. It’s not unusual for the SRA to be more active in a particular area than they were before, but this has been a string of cases in a context where obviously the world hasn’t changed with regards to partner and team moves andthe sort of information that people seek to exchange at that time. So what’s your sort of overall experience of this situation and how partners and teams approach this issue of confidentiality when looking to.
David: It’s certainly a common issue.the fact of course is that whenever you’ve got a partner who’s looking to move firms, either on their own or possibly with a team, the new firm’s going to want to know what it is that they’re going to bring with them. And obviously the partner with team moving wants to sell themselves and demonstrate that they’re a good prospect for the new firm.
And there’s certainly a danger here for a partner moving and for the firm that’s looking to hire that some client confidential information will find its way into a business plan or possibly in responses given to a questionnaire that the potential hire is given by the new firm. So clearly care needs to be taken there to make sure that no information which is confidential to a client is disclosed in that way. Typically, anyone looking to move in those circumstances will have to make sure that information is anonymized, that it can’t be interpreted in a way to reveal confidential information to the new firm. There is also a danger that even though people might take care when they’re putting things into writing, that in the heat of an interview, shall we say, and with the enthusiasm that they have for their practice, they can go and reveal something that they ought not to reveal. An example of this happening not in the legal sector, but I recall a case I was involved in a number of years ago. I actually went to trial at the High Court and it was all to do with a sales representative who was moving between companies and had some quite stringent restricted covenants that they were subject to and trying to claim that those covenants were unenforceable. One of issues here was whether or not this individual had access to confidential information belonging to their old employer and how they might use that. They were adamant that they abided by their obligations to confidentiality. But counsel for the firm they used to work for was quite skillfully able to bring out in cross-examination that they disclosed quite freely a lot of confidential information about their old employer during their interview process when they were sort of quite enthusiastically talking about what they’ve done in their job and what they could bring to the new employer. And so because it’s very easy for individuals to get a little bit carried away and perhaps not take quite the same care that they would take when they were putting information in a business plan.
Nick: Do you think from previous experience, David, whether there is any clarity of approach or any sort of consistency of approach in this sort of situation when considering the regulatory obligations and issues such as what might already be in the public domain, for example, or what might have some sort of implied client consent alongside it.
David: I think, you know, partners will often take the view that information that is there in the public domain that they are able to disclose or talk about with the hiring firm. Again, you know, there are possibly sort of limits on that because there may be some debate as to exactly what is in the public domain. And there’s certainly a danger of going too far, I think, and revealing more information than should be revealed. I think where partners can get into difficulty here is around information about team members when they’re moving. So less perhaps around sort of client confidentiality, if they’ve been very careful not to disclose details of the units of transactions or matters they’ve worked on that aren’t sort of fully in the public domain. But might talk a bit too freely about who in the team might be willing to move.
So it’s all very well for the new firm to be able to look on a website and see who is in the team. But there could be issues as to really who’s, know, who’s suitable, who the new partner would want to move, what it will take to encourage these individuals to move. And sometimes even just providing information such as personal contact details that might not be available on a website or LinkedIn. I’ve certainly seen cases where partners have got into difficulty because the new firm or headhunters have approached team members and the only way in which they could have really done that is through the partner who was leading the team. So a whole number of ways in which difficulties can arise here. Again, just through a little bit of lack of care and very often just sort of being done in conversation rather than in a way that’s also laid out carefully, such as in the business plan where perhaps a bit more care is taken.
Nick: It’s difficult, isn’t it? Because ultimately, the new business and the individuals have to be satisfied that they’re not trying to move potentially a collection of clients and contacts who the new firm couldn’t act for. a lot of this is about doing perfectly reasonable checks, isn’t it, in relation to conflicts, be they commercial or legal conflict.
David: Yeah, that’s right. I suppose it’s question of where that comes in, what stage in the process that arises and how that’s, yeah, how that’s sort of tackled and revealed. think that, again, from experience and also on a commercial basis, I think a lot of firms, lot of individuals looking to move will take a view that well the only way of actually dealing with this issue is to have the information laid out and for the parties to able to check what it is that’s being worked on or who the clients are, where real or commercial conflicts might arise.
Nick: And Andrew, is there a way from a regulatory perspective that you might be able to do that in a way that doesn’t necessarily cause an issue, either for the businesses or for the regulator further down the line?
Andrew: Well, I think it’s difficult when you’re talking about individuals moving or teams moving. We’ll perhaps talk about teams merging in another talk, but there may be ways around that in terms of terms and conditions and paragraphs and engagement letters, et cetera, which might enable you to disclose certain information. But obviously, that’s a firm issue, whereas if you’re talking about a partner and a team, their interests at that point may not be aligned with the firm that they’re leaving. it’s a difficult one.obviously you will know what area that individual is working. You will know the broad sort of thrust of the client base. And there may be things like directories or, you know, clients that have names in the public domain or court judgments or something that you can work from. So there are, you know, it’s not the case that you wouldn’t have any idea what sort of clients that the person that was coming to your firm was acting for. Obviously, if you knew you had a particular sector where that was going to be difficult for you, you could probably work that out fairly easily. But in terms of actually providing direct client information, then there isn’t because you know, don’t do the provisions that might enable you to do that in a context of a firm merger wouldn’t enable an individual to disclose information in the same way as you would in a firm merger.
Nick: Okay, so coming back to the real risk to the individuals or partner groups, David, that might be seeking to move. What is that risk? What is the potential action from your experience that the old firm, for want of a better word, might take if they discovered such breaches in a situation where there may be some animosity in relation to the move?
David: So you normally see as the first step of quite a stiff letter of claim from the firm to the to the individuals, most likely the partners, lead partners involved also potentially to the hiring firm as well. Setting out what information it is that’s known, depending on how much information is actually known. Sometimes these things are based more on suspicion, inference, rather than actual sort hard evidence of any breaches depending on what’s come out and what the old firms has got to know. And usually that will include a request for undertakings, provision of information, answers to some quite searching questions, no doubt demands for delivery of any information that has been taken. And the threat is there very possibly of an injunction against the defaulting parties if the firm is satisfied with what it gets back. So,very real, very real threat. Most of these cases, things tend to get resolved without legal action being necessary, but it could involve a lot of time, effort and cost for the parties involved. Particularly they’ve got to start answering very carefully the questions that have been put to them, providing statements or affidavits about what they’ve done, very possibly having to deliver up devices for inspection as well. In a lot of cases, that’s the line that individuals will have to take if there’s good evidence that they’ve done something that they shouldn’t have done. Very often they’ve just got to go along with what the old firm is asking for and desperately try to avoid getting drawn into lengthy and costly proceedings. So, yeah, lot of complexity involved and a lot of scope here for, yeah, damage to be done to the individuals moving and potentially to the new firm as well if they’re not if they’re not careful.
Nick: And to personal and professional relationships, of course.
David: Absolutely. that’s it. mean, and even without, you know, going this far, even without possibly getting close to taking proceedings, there’s always the risk for a partner who was, who’s leaving or was left a firm, that the firm still has some of their money. You know, very often will be profits that haven’t been paid out or there might be capital that’s been retained and so on. Very often the easiest thing for the old firm to do is to hold onto it and make out that the partners are in breach of their obligations. It may give their specific provisions in a LLP agreement, partnership agreement, which give them the right to hold onto or offset sums in situations like this. And it can be quite a struggle then and costly battle for the partner to recover the money that they think they are owed. So lots of pitfalls.
Nick: And Andrew, what about from the firm’s perspective? What do they need to consider from the regulatory point of view, if or when they become aware of the sort of breaches of confidentiality that we’ve been talking about?
Andrew: From the old firms perspective, if they’ve got a concern that someone has taken material with them to a new firm, then depending on where they stand evidentially and what if they’ve got enough evidence to substantiate that, they’d be thinking about do we need to report the individual to the SRA and or the new firm depending on to the extent to which they are aware of it. And it may be one where they say and there’s a specific provision in the code of conduct for this. We don’t precisely know what’s happened, but we’re telling the SRA so you can investigate because the SRA may be in a better position to the new firm to provide information than the old one. In terms of the new firmif we look at the examples of the cases that I mentioned earlier, if they become aware that someone has brought information from an old firm to them and is using it and deploying it, then again, they will have to consider whether that individual needs to be reported. And obviously, the indication we have from these decisions is that the SRA do take it seriously, they do consider it to be a breach of the rules and the principles, albeit these two individuals are only given rebukes. But the more serious case, they did find a lack of integrity. So they’re clearly going to have to consider reporting.
Also, you might have to consider if someone’s taken client confidential information across to the firm without consent, do we need to tell those clients or does the old firm need to tell the clients? We’ve become aware that your client information has ended up with and we’ve taken steps to ensure that it’s been deleted or whatever there still may need to be an obligation to tell those clients that this has happened and the steps that you’ve taken to ensure that the confidentiality has been dealt with or the issue has been dealt with.
Nick: Different considerations, I suppose, for people coming at it from different angles, the individual may have done what they’ve done, and they’ve got to find their response to that. But for the firm often it is about, how they react and what they do in response to the discovery of particular information, isn’t it?
And just finally, on this, David, the difficulties can be more substantial, depending on the pace at which something is something is happening and there are times, aren’t there, where these moves can happen really quite quickly and the clients obviously are in the middle of it. Different considerations, I suppose, in that sort of situation and greater risk.
David: That’s right. As I say people, sort of moving quickly, not thinking clearly, as clearly about what they’re doing, just eager to get things moving along. Very often, there’ll be not just the desire to let a new firm know what partner and the team can bring along. Also sometimes just a wish to involve the client, start talking to the client about things, which brings its own issues because of breaches of obligations the team will still owe to the old firm. All very sort of complicated, lots of potential for breaches from all directions, I think, and certainly where things are moving quickly, yeah, even more so.
Nick: There are bound to be ongoing matters, aren’t they? And no doubt, clients have long standing relationships with individuals and they want their legal work done in the best possible way, with the best possible outcomes. But they also need to have choice, don’t they? They’re not commodities, who can be moved around irrespective of their wishes, can they?
David: No, well, that’s the thing. often we’ll say to or make it clear to partners who are looking to move or the firm that’s hiring that obviously the client’s choice goes a long way commercially in these sorts of matters as well. A client is very keen to follow a particular partner or particular team to new firm. It isn’t going to be very happy with the old firm if they’re prevented from making that move. all sorts of commercial issues come into play as well. And it’s about just trying to get that sort of balance, making sure that the individuals, the teams moving, keeping their contacts and their clients happy without reaching either their commercial obligations to the firm or indeed their regulatory obligations.
Nick: Sometimes I think for individuals the principles can clash, can’t they? You’ve got to uphold public trust and confidence in the profession. You’ve got to protect client confidentiality. We’ve also got to act in the best interests of clients. That’s what makes this very, very difficult for all individuals, particularly when dealing with rapidly moving commercial disputes.
David: Absolutely. Yeah, agree with that.
Nick: Okay, well look, it’s been a very interesting discussion. I hope everybody viewing this has enjoyed it. And if there are any questions arising, you should, of course, make contact with us. And we look forward to picking this up again and looking at it from the perspective of broader mergers and acquisitions in due course. But thanks very much for listening.
