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Legal Professional Privilege inbrief Legal Professional Privilege Inside Legal advice privilege Litigation privilege Loss of privilege Preserving privilege - practical steps Privilege flowchart Glossary of terms inbrief Introduction private practice lawyers, save that privilege will Legal Advice Privilege This guide is intended to provide a not apply to in-house lawyers in the context of Legal advice privilege applies to confidential European competition investigations. Nor will brief overview of legal professional communications between lawyers and their privilege apply if a lawyer (whether in private privilege. It also identifies some clients for the purpose of giving or receiving legal practice or in-house) is acting, not as the client’s practical steps which will help to advice. Legal advice privilege, which is available legal adviser, but as the client’s “man of business” maintain privilege and concludes with in contentious and non-contentious situations, or otherwise acting outside his capacity as a a privilege “flowchart” and table of therefore concerns: lawyer. commonly used terms. • confidential Client • communications Legal professional privilege belongs to the client. • between a lawyer and client • for the purpose of giving/receiving legal Where an individual instructs a lawyer they are the advice. client. It is more difficult to identify the “client”, however, where a corporate entity instructs a Each part of the test for legal advice privilege is lawyer. In Three Rivers No 5 ([2003] EWCA Civ explained briefly below. 474), the Court of Appeal held that neither the Confidential corporate entity itself nor the employees per se Confidentiality is the touchstone of legal advice will be the “client” when assessing matters of and litigation privilege. Documents which are not privilege. Instead, only those within the corporate confidential will not be privileged. Confidentiality entity who are authorised to instruct the lawyer may therefore be regarded as a necessary and seek/receive legal advice are to be treated condition for privilege to exist. as the client. Therefore only communications between a lawyer and that group of authorised Communications between lawyers and their individuals will be cloaked in privilege. clients will ordinarily be confidential, particularly given that a lawyer owes a duty of confidence to The practical impact of the Three Rivers (No 5) his client. decision is that communications passing between a lawyer and “non-client” employees of the Communication instructing corporate entity will not be privileged. “Communications” include direct lawyer/ Such communications will not be privileged even if client communication such as letters, emails, the corporate entity specifically authorises a non- telephone calls and meetings. But the concept client employee to communicate with the lawyer. of communication goes further and captures, For example, if litigation privilege does not apply for example, documents intended to be (see below) then internal investigatory interviews communicated between a lawyer/client which between lawyers and “non-client” employees will were never actually sent as well as documents not attract privilege. evidencing lawyer/client communications, such as Legal advice privilege can apply where a client an attendance note of oral advice. uses an agent to communicate with a lawyer. Lawyer However, the definition of an “agent” in this In order for legal advice privilege to apply there context is narrow and great care should be must be a relevant communication between a exercised when a client chooses to communicate lawyer and a client. “Lawyer” is defined broadly with their lawyer via a third party. and includes not just members of the Bar and Legal Advice Law Society, but also to properly qualified legal “Legal advice” includes telling the client the executives, licensed conveyancers and foreign law. But it is much wider than that. Privilege lawyers. Privilege can also extend to non-qualified attaches to legal advice which relates to the employees (such as trainees and clerks) acting rights, liabilities, obligations or remedies of the under the supervision of a qualified lawyer. client. Privilege is also available for advice about Privilege will not, however, extend to other what should prudently and sensibly be done in professionals (such as accountants) who advise on the relevant legal context. For example, in Three legal matters. Rivers (No 6) ([2004] UKHL 48) it was held that There is no difference between in-house and privilege could apply to advice relating to the inbrief content and presentation of a statement to be In the context of legal advice privilege it will often proceedings are commenced and stated that: made to a public inquiry. be a relatively straightforward matter to show • Criminal proceedings cannot be started that communications are confidential (particularly Privilege also applies to all material forming part of unless and until the prosecutor is satisfied given that a lawyer owes a duty of confidence to the continuum of lawyer/client communications, that there is a sufficient evidential basis for his client). even if the communications do not expressly prosecution and the “public interest” test seek or convey legal advice. In Balabel v Air In the context of litigation privilege, which often is met. India ([1988] Ch 317) it was held that the test is involves communications with third parties, • Litigation privilege therefore cannot be whether the relevant communications “are part of documents will be confidential if they are not claimed (ie criminal prosecution cannot that necessary exchange of information of which properly available for use. Communications reasonably be contemplated) until the the object is the giving of legal advice as and between clients/lawyers and third parties (such proposed defendant knows enough to when appropriate”. as experts and witnesses) which take place in the appreciate that a prosecutor is likely to context of preparations for litigation will invariably unearth enough evidence to stand a good Litigation Privilege have the necessary quality of confidence. chance of securing a criminal conviction. Litigation privilege is based on the idea that parties Adversarial In other words, litigation in criminal proceedings should be free in adversarial proceedings to Litigation privilege is only triggered once cannot be claimed by a defendant until such time prepare their case as fully as possible without the proceedings are in progress or in contemplation. as the defendant is aware that prosecution (as risk that their opponent will be able to recover the Given the rationale behind litigation privilege, the opposed to mere investigation) is reasonably in material generated by their preparations. relevant proceedings must be adversarial in nature. prospect. Litigation privilege applies to confidential Claims before the English courts or arbitration The Court contrasted the position in criminal communications between parties, their lawyers conducted in accordance with English procedural proceedings with those in civil proceedings. In and third parties for the purpose of obtaining law will be deemed to be adversarial and capable civil proceedings a claimant may issue proceedings information or advice in connection with existing of generating litigation privilege. without having to meet a merits or “public or contemplated litigation when, at the time of interest” test. A commercial entity may therefore the communication in question, the following Litigation In Progress/Contemplation reasonably anticipate that a rival is going to sue it conditions are satisfied: Litigation privilege cannot be claimed if when it receives correspondence on the subject, proceedings do not exist or are not in even if the threat of litigation has not yet been • Litigation is in progress or reasonably in contemplation. Therefore a key question is this: articulated. An investigation into the rights and contemplation; when will litigation be “in contemplation”? wrongs of the civil dispute will not preclude • The communications are made with the sole The answer is that a mere apprehension of litigation from being in reasonable contemplation. or dominant purpose of conducting that proceedings will not be enough to generate anticipated litigation; and Given the contrast between the thresholds litigation privilege. Although there does not need • The litigation must be adversarial, not that have to be met before litigation can be in to be a greater than 50% chance of adversarial investigative or inquisitorial. “contemplation” in civil and criminal proceedings, proceedings, litigation must nevertheless be there remains a real difference in the potential It will be appreciated from the above points that “reasonably in prospect” in order to claim applicability of litigation privilege to documents litigation privilege is wider in its scope than legal litigation privilege. The person claiming litigation produced in the course of investigations advice privilege in certain key respects: (a) litigation privilege must show that he was aware of depending on whether that investigation is privilege can apply where communications are circumstances which rendered litigation between into civil or criminal matters. Those setting up between a client (or his lawyer) and a third party himself and particular persons a real likelihood investigations into potentially criminal behaviour or and (b) litigation privilege will apply even when rather than a mere possibility. actions need to give careful thought before
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