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Attorney-client Privilege In Us And English Law Compared

English Law

The right of legal advice under English Law covers private correspondence between a counsel and a client, whether written or oral, for the purpose of providing or obtaining legal advice.

When dealing with private people, the concept of “client” is clear.

However, in the case of a corporate agency, who is the “client” will be a matter of fact, and it can not immediately be concluded that the “client” will actually be applied for legal advice privilege purposes to both the management and staff, however senior, of the corporate entity.

Instead, court practice established the rule that the word ‘client’ is clearly understood to mean only those persons within the organization allowed to instruct attorney and to obtain legal counsel on behalf of the corporation on the matter at problem.

On the one hand, those who advise attorneys and obtain legal counsel on the other may be the same or may be separate people. The number of members of the “client” is not limited, except to suggest that the larger it is, the more complicated it may be to explain.

It can be privileged as long as the contact is for the purpose of providing or obtaining legal advice. This is generally interpreted to mean interactions when there is a “relevant legal context,” or informally whenever the lawyer advises with his or her legal spectacles. It may include advice from an attorney on how to present a case to an investigation, but it can fail where the lawyer is involved.


United States Law

Attorney-client privilege is the US counterpart of English legal advice privilege. The concept of a client when working with private persons is simple, analogous to English law. The analysis is a bit more complex in the business context. The privilege of attorney-client covers interactions between in-house or external attorneys and their clients that are I supposed to be confidential

Workers who hire and direct the counsel are usually part of the client party. If they agree with the test set down in Upjohn Co. v. United States by the United States Supreme Court, all employees will then be part of the client group:

First, organizational supervisors must be allowed to speak.

Second, the worker must be mindful that the contact is tied to legal advice.

Third, the knowledge to which the correspondence refers cannot be accessed from the superiors of the organization.

 Fourth, contact must be connected to the responsibilities of the employee at the organization.

Whether all of these variables are not satisfied, under US law, the correspondence would probably not be privileged by the attorney-client privilege. But, if made in expectation of litigation or for evidence, it could be covered by the doctrine of the work object.