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Managing Legal Professional Privilege
The relationship between a lawyer and their client is an important one and one that must be protected. For this reason, only in very limited circumstances can the communications you have with your lawyer be released to other parties. It is a fundamental human right that we may speak to our lawyers honestly and openly, safe in the knowledge that any information we provide to them cannot be released and prejudice us at a later date.
Legal Professional Privilege entitles a client to refuse to disclose certain types of confidential documentation, relating to legal advice and intended litigation, to a third party (e.g. the Court or HMRC). Whether a document is protected is not always obvious and legal advice is recommended but here is a short outline of the principles of privilege and how you can take steps to protect your confidential legal information.
There are two types of privilege-
1. Legal Advice Privilege
This protects the confidential communications between a lawyer and their client from being disclosed to a third party.
In early 2013, the Supreme Court issued an important ruling in relation to privilege. It decided that the doctrine would not offer protection to any professionals other than lawyers in their communications with clients. So, for example if an Accountant provides advice, even legal advice, to their client these communications will not be protected by privilege and this information cannot be withheld if he is asked to release it.
For this reason it is important to be sure who the involved parties are:
Who is a lawyer?
A lawyer is defined as someone who is qualified to practice as a Solicitor under the Solicitors Regulation Authority (SRA) or a Barrister under the Bar Council. This covers lawyers who work internally in a business, as well as external lawyers. Paralegals and trainees advice is also protected provided they are supervised by qualified lawyers.
Who is a client?
When one person seeks out legal advice from a lawyer on a specific issue, it’s clear who the involved parties are. However, what about where a company takes legal advice from a lawyer? Is everyone at the company a ‘client’? Which communications are protected?
The ‘client’ in these circumstances is/are the one(s) tasked with obtaining legal advice. It does not extend to everyone working at the company or even everyone in the same department as the ‘clients’.
Exactly what communications are protected?
As well as providing advice on the law itself, advice from your lawyer stemming from this may also be privileged. So, for example, strategic advice about how to deal with a certain situation in relation to the relevant law may be protected. However, if the advice is purely commercial (about your business and not law related) it will not be covered.
2. Litigation Privilege
This protects confidential communications made after litigation has started, or is reasonably in prospect, between either a lawyer and a client, a lawyer and an agent, whether or not that agent is a lawyer and a lawyer and a third party.
These communications must be for the sole or dominant purpose of litigation, either:
- for seeking or giving advice in relation to it
- for obtaining evidence to be used in it
- for obtaining information leading to obtaining such evidence
Litigation means court proceedings so internal matters (e.g. disciplinary proceedings) will not be protected. Furthermore, the litigation cannot just be a mere possibility when the communications took place, it must be actual or at least a reasonable prospect at the time the communications took place. Litigation need not be the only reason for the communications but it must be the main one.
How can you protect your confidential information?
There are steps you can take which reduce the likelihood of possibly prejudicial documentation falling into the wrong hands. Some ideas are below but should you wish to discuss this any further, get in touch with one of our expert Solicitors.
- Make it clear in your communications with lawyers (internal or external) that you want their advice on a certain matter. Write this explicitly on your letter and send it directly to them.
- Mark all documentation ‘Privileged and confidential – created for the purpose of obtaining legal advice/in the contemplation of litigation’.
- Keep privileged documents separate from non-privileged ones so they are easier to recognise.
- Be careful when copying privileged information – the copy may not be protected like the original one if it is created for another purpose.
- Avoid creating unnecessary documents – if you can have the discussion in a meeting or over the phone, do that instead.
- When it comes to writing the minutes of a meeting, make separate sets of notes – one set containing the legally privileged information and the other containing everything else and store them accordingly.
This list should give you an idea of the kinds of things you can do to protect your confidential legal dealings but remember it’s a non-exhaustive list.
If you, your company or one of your clients requires advice on Legal Professional Privilege, please contact one of the business crime and regulatory team for a no-obligation discussion on how we can assist.
Partner and Head of Department
Business Crime, Regulation & Driving Offences