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Concept Of Legal Privilege In Scotland

Definition

The principle of legal professional privilege protects such records and details from disclosure in the sense of legal proceedings that, in the absence of privilege, may involve disclosure of such data to the other side prior to trial in litigation/arbitration or may be confiscated/inspected by investigators in most regulatory procedures and may then be relied on as evidence in most regulatory proceedings.

Two major kinds of legal professional privilege are recognised by the law of Scotland:

  • Legal advice privilege which, for the dominant purpose of obtaining or providing legal advice, protects confidential communications between client and lawyer (on any area of the law)

  • Privilege of litigation that protects sensitive correspondence, including those with third parties, for the dominant reason of existing or anticipated litigation (ie an adversarial rather than an investigative or inquisitorial process)

The right of legal advice extends to all correspondence where legal advice is requested or offered and where the advice (or any document within which it is contained) between the lawyer and the client remains confidential. Privilege of litigation encompasses discussions that take place and records produced in litigation contemplation. It will normally be a matter of fact when litigation is in contemplation and the problem will always turn on when actual contemplation started.

A substantive right is a legal professional privilege (not a procedural rule). It allows a person in a wide variety of circumstances to refuse to reveal those records. A legitimate statement of legal professional privilege cannot be derived from any adverse inference.

Judicial professional immunity only covers confidential information. If records that may otherwise be confidential include information that is now in the public domain or that has been exchanged with third parties, there would be a lack of legal professional privilege.

The legal professional right belongs to the client, not the solicitor, and does not rely on the document being in the possession of the lawyer. Privileged records may be (and are often) kept by the customer.

It should be noted, as a matter of general principle which may be applicable to the practical implementation of the privilege laws, that the definition of preaction civil disclosure does not exist in Scotland in the same way as it exists in England and Wales. Scottish proceedings require that if a party wishes to see a document or other material, it must generally request this through a formal judicial process known as commission and diligence or through a statutory procedure under the 1972 Act of the Administration of Justice (Scotland) during which a confidentiality/privilege claim can be asserted.

 

Legal professional privilege in the sense of civil litigation

Privilege in litigation allows a litigant to prepare for litigation (civil or criminal) without fear of future disclosure of any documents created for that purpose. It is broader in nature than the right of legal counsel, but only occurs until litigation is properly contemplated or begun. It covers, from that moment on,:

  • Private correspondence

  • Communications between any of a client, its lawyer and a third party, and Communications for the purpose of the litigation

 

Legal professional privilege in the sense of judicial inquiries

From the beginning, administrative investigations in the UK are not automatically treated as adversarial and thus litigation privilege does not occur. The result is that legal advice provided in the context of such an investigation will attract the privilege of legal advice, but documents such as notes, interview transcripts and/or expert reports may not be privileged for the purpose of providing advice or evidence and may therefore be disclosed to a regulator or in subsequent litigation.

In any case, litigation privilege will apply if it is clear that any sort of prosecution or litigation resulting from the investigation is in consideration or, at an earlier point, whether the investigation process itself has become sufficiently adversarial such that the organization under investigation is effectively accused of misconduct and should therefore be entitled to invoke litigation privilege over litigation privilege

The rule against self-crimination states that, if the document or information threatens to expose them to future indictment, no person is obliged to reveal any document or information.

In relation to records, in Clyde & Co (Scotland) LLP v Procurator Fiscal, Edinburgh [2016] HCJAC 93 and H Complainers, LLP v Procurator Fiscal, Edinburgh [2016] HCJAC 93 and H Complainers, the situation about the execution of a search warrant by Police with respect to files kept by lawyers has recently been considered (5 February 2016, as yet unreported due to the proceedings not yet having concluded).

In summary, the courts have held that if it is apparent that what is to be searched is the office of a lawyer and that legal protection is claimed, any warrant should have either provided for the independent oversight of the police search by a court-appointed Commissioner, or included a condition that any seized information should be sealed unread and presented to the court. If a person does not understand the principle of privilege before presenting a reply, or if privilege is asserted and rejected, the position on the admissibility of the reply has yet to be fully tested in Scotland and there is no recorded case law on the subject, the likelihood is that a Scottish court will obey the English authorities to the degree that if privilege I

If a witness is conscious of privilege but clearly does not claim the right, the situation in England is that either in the present or any possible criminal proceedings, an incriminating response is admissible. The probability is that the same strategy would be taken by a Scottish court, as long as the presiding judge alerts the witness in advance (Graham v HM Advocate 1969 SLT 116).

 

What does legal professional immunity protect?

 

Privilege of legal advice

In the absence of an adversarial action, legal professional privilege shall be attached only to documents which constitute confidential communications made between a lawyer and his client for the purpose of offering or receiving legal advice and to documents attesting to those communications, including material which forms part of the continuum of those communications. Further clarification is provided for each part of this exam.

 

Communications

Communications must actually transfer information between a lawyer and their client, which is understood to include actual communications between lawyers/clients (e.g. phone calls, face-to-face discussions, letters, emails, faxes, etc.) and proof of such communications (e.g. phone call file notes, memos, computer hard drives, video proof, sound recordings, etc.)

A correspondence does not constitute a document which stands in its own right or is not addressed and provided expressly for advice to a lawyer. A statement written by an employee at a manager’s request to record the memory of events by the employee is unlikely to benefit from the right of legal advice, even though the employee hopes that the document would be passed on for advice to lawyers, because it is not a contact with a lawyer.

 

Lawyer

This defense attracts all members of the legal profession: attorneys, in-house lawyers (with the exception of the European Commission’s antitrust and competition investigations), lawyers in the United Kingdom and properly qualified international lawyers (whether foreign inhouse counsel who are not required to be a member of their local Bar would still qualify is currently untested). Where adequate supervisory provisions are in place, legal executives, paralegals and trainee solicitors may also be included. Care must be taken to place the contact within the proper lawyer / client relationship when dealing with an in-house lawyer. Two such relationships will need to be maintained by an inhouse lawyer; one with the organization in which they are the ‘lawyer’ and one with external lawyers in which they are the ‘client’ (alone or together with others).

In a decision likely to persuade Scottish judges, the Supreme Court confirmed that the right of legal advice cannot be asserted in respect of confidential correspondence between accountants and their clients with a view to obtaining or offering legal advice. Consequently, advisers other than lawyers, regardless of whether the same advice is obtained from both, are unlikely to be able to assert privilege.

Client

In order to attract privilege, not every employee in a business would be a customer. The ‘client’ would include only those few persons allowed to obtain legal advice and who, whether external or in-house, seek and receive legal advice from the lawyer. This could be an ad hoc committee or group created to react to a particular problem or event, or it could be senior management members. Often, however, those with direct knowledge of the facts or matters in issue will not fall within the concept of ‘client’ and particular care will therefore need to be exercised when interviewing or obtaining information from such employees.