Client confidentiality, legal privilege and limited exemptions

The Data Protection Act 2018 contains provisions which mean that, in some circumstances, solicitors are exempt from certain duties when dealing with personal data. This is where the personal data that the law firm is processing is subject to a duty of confidentiality to the client which could be maintained in legal proceedings. i.e. legal privilege.
If this applies, then the provisions law firms are exempt from are:

• the requirement to provide fair processing information; and
• the requirement to disclose personal data in response to a subject access request and from the obligation of complying with other data subject rights; and
• all of the data protection principles in so far as they relate to the above requirements.
  These exemptions exist to ensure that the obligations under the GDPR do not prejudice the confidentiality of the work that law firms are carrying out for their clients. They do not apply to all the processing of personal data that is carried out by the firm.

Client confidentiality/legal professional privilege in Scotland

It can sometimes be challenging to identify what information client confidentiality attaches to. It will not apply to all your client matters and it will not apply to all the information contained in your client files. The right to privilege and the right to waive privilege rests with your client. You should consider this matter carefully.

Legal professional privilege can be claimed by a client to avoid disclosure of documents. Broadly speaking, there are two main categories of documents to which privilege can attach:

• Confidential communications between a client and solicitor, where the client seeks, and the solicitor gives, legal advice (legal advice privilege).
• Confidential communications between a client and solicitor in contemplation of litigation (legal litigation privilege). This extends beyond communications solely between solicitors and clients to cover communications with third parties (eg experts and witnesses), but only applies where the overarching, dominant purpose of the communication is for use in actual, pending or reasonably contemplated litigation.