Definition
Legal professional privilege is a principle that protects such records from disclosure in the course of legal proceedings. Without the defense of privilege, such records can need to be revealed to the other party in pre-trial litigation/arbitration proceedings or may be seized/inspected by prosecutors in most regulatory procedures and relied on as evidence in the trial.
The law of England and Wales acknowledges two primary forms of legal professional privilege:
Legal advice privilege exists to protect confidential correspondence between the client and his or her lawyers when the object of the contact is to give, request or obtain legal advice. It does not extend to interactions with advisers who are not attorneys, such as tax advisers or accountants, and Litigation protection covers confidential communications between the client and his or her lawyers, or any of them and a third party, where the primary or dominant object of the contact is to give, request or obtain legal advice in connection with adversarial proceedings, or to collide with adversarial proceedings.
Other types of legal professional privileges that are rarely claimed are general privileges and privileges of common interest.
Legal professional privilege is a legal right of substance (not a procedural rule). It allows a person to refuse to reveal those documents in a wide variety of circumstances. No adverse inference can be made from the legitimate statement of legal professional privilege.
Legal professional immunity covers only confidential information. If records which would otherwise have been confidential include information which is already in the public domain or which has been exchanged with third parties, legal professional rights would be lost.
The legal professional privilege belongs to the defendant, not the attorney, and does not rely on the paper being in the possession of the attorney. Privileged documents may (and are often) retained by the client.
Scope of Legal Professional Rights
Litigation Privilege
Litigation privilege offers greater protection than the privilege of legal advice, as, where appropriate, it can shield correspondence with third parties as well as between the lawyer and the client. It applies where there is an adversarial process or where there is a fair prospect of it. Regulatory authorities’ enquiries, staff’s requests for witness testimony, third party disclosure orders and other investigative practices may not be considered adverse, while regulatory proceedings in which judicial powers are exercised are likely to be considered adverse for those purposes. A good approach to deciding if the proceedings are in prospect is to determine whether there is a legal question to be decided between the parties to the related proceedings.
If adversarial proceedings occur or are fairly prospective, the ‘dominant intent’ test shall be extended in order to protect as protected any confidential information prepared for the dominant purpose of supplying or receiving legal advice in respect of such litigation or assisting in the conduct of such litigation. Determining the intent of a document can be troublesome, particularly since the test is one of superiority and not of exclusivity. The court will, however, determine the intent of the document on an objective basis. Litigation privilege should not have a retrospective effect.
Legal Advice Privilege
Where no adverse proceedings are contemplated, legal professional privilege shall be attached only to documents which constitute confidential communications between a lawyer and his client for the purpose of offering or receiving legal advice and documents which provide proof of such communications, including material forming part of the spectrum of such communications. Each part of the test needs further clarification.
Communications
In order to obtain the right of legal advice, a document must, in fact, transfer information between a lawyer and a client or be intended for that purpose. A document which is not prepared for the purpose of being referred to a lawyer for the purpose of receiving legal advice or which is not addressed and forwarded to a lawyer directly for advice does not constitute a correspondence. A declaration written by the employee at the request of the manager to record the employee’s memory of the events is unlikely to profit from the right of legal advice – even though the employee claims that the paper would be sent to lawyers for advice – since it is not a contact with a lawyer. However, the transfer of that argument by a client to his counsel for advice will benefit from the right of legal advice.
Attorney definition
Includes all members of the legal profession: judges, domestic lawyers, UK attorneys and properly licensed international lawyers. Where adequate monitoring provisions are in effect, they can also include legal officers, paralegals and trainee solicitors.
There could be a danger of interactions with domestic lawyers where the context of the correspondence relates to commercial rather than legal matters. If this is the case, the right would not apply. A further restriction applies to in-house lawyers, in that correspondence between them and their clients may not be covered by privilege in the case of antitrust proceedings by the European Commission, on the ground that in-house lawyers are not considered to be adequately separate from their clients in such circumstances.
Client definition
Not every employee of a company will be a client to obtain privilege. The ‘client’ would only include a few people who are allowed to obtain legal advice and who seek and receive legal advice from the lawyer, whether external or internal.
This may be an ad hoc committee or group created to respond to a particular problem or event, or may be representatives of senior management. Often, however, those with clear knowledge of the facts or issues at issue will not fall under the definition of ‘client,’ and extra caution will therefore have to be taken while interviewing or extracting information from such employees.
Documents drawn up for the purpose of offering or receiving legal advice
Legal professional privilege only extends to communications that include or request legal advice as to what can be done prudently and sensibly in the applicable legal sense. This includes guidance on how best to present the facts in the light of the legal advice offered. In deciding whether there is a valid legal context, consideration should be given to whether the advice applies to ‘the interests, responsibilities, obligations or remedies of the client, either under private law or under public law.’ Privilege shall not be attached to advice that is solely commercial or strategic.
Legal professional privilege in the sense of criminal investigation
Regulatory investigations in the United Kingdom are not automatically deemed to be adversarial from the outset and so the right of litigation does not occur. As a result, legal advice provided in the sense of such an investigation would be given the privilege of legal advice, but records, including notes, interview transcripts and/or expert reports for the purpose of offering advice or facts, will not always attract the privilege of litigation and may not be revealed to the regulator or in subsequent litigation.
Litigation privilege shall extend in any case as soon as it is clear that any form of prosecution or litigation arising out of the investigation is in fair consideration. Whether proceedings would take place in a fair manner is a matter of fact in any case and does not entail the commencement of a formal criminal investigation or a decision to prosecute. Nor does it require the defendant to provide full knowledge of what may arise from the inquiry or utter assurance that the proceedings will be launched. Litigation protection can also extend at an earlier stage if the prosecution process itself has become sufficiently adversarial such that the business under investigation is effectively accused of misconduct and may thus be entitled to assert the privilege of litigation over the information collected for the purpose of seeking advice to protect itself.
Is correspondence with in-house counsel secured by legal professional privilege?
It is but in-house lawyer must take special care to ensure that a clear distinction is made between the advice which is legal and the advice of a commercial nature, because the latter would not be given legal professional privileges. The in-house lawyer must also take care to advise external lawyers to clearly define and efficiently handle the appropriate legal/client relationship.
Will the legal professional privilege of non-national trained lawyers extend to correspondence?
Yes, where the topic of disclosure is regulated by the law of England and Wales. Legal professional privilege shall extend to advice provided by all properly qualified members of the legal profession. There is no need for a lawyer to be eligible in England and Wales. The question whether this applies to domestic counsel in European jurisdictions where such counsel are not required to be members of their local bar and whose advice in their own jurisdiction will not be covered by local professional confidentiality laws continues to be resolved by the UK courts.
How are legal professional privilege waived?
Legal professional privilege shall be waived if the subject information is brought before a court of law. It is also lost if the information in the document loses confidentiality or if the document has been created for the purpose of furthering a criminal or fraudulent scheme. A lawyer has a responsibility to protect the legal professional privilege of a client and cannot waive it without the express authority of the client.