Legal professional privilege is a term which, in the context of legal proceedings, protects certain documents from disclosure.
Such documents may need to be revealed to the other side in litigation or arbitration prior to trial for the defense of privilege, or may be confiscated or examined by investigators in most regulatory proceedings and relied on as evidence at trial.
Under Irish law, there are two primary forms of legal professional privilege:
The protection of legal advice protects confidential correspondence between a client and his lawyers from disclosure when the object of the communication is to give, request or obtain legal advice. It does not refer to consultants, such as tax advisers or accountants, who are not lawyers.
The protection of litigation protects confidential correspondence between a client and his lawyers or any of them and a third party from disclosure, where the primary or dominant object of the communication is to plan for litigation that is real or fairly apprehended.
Joint privilege, mutual interest privilege and privilege without discrimination are other forms of legal professional privilege that are occasionally claimed.
A substantive legal 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 privilege only covers records that are confidential. If records that would otherwise be confidential include information that is already in the public domain or has been widely exchanged with third parties, legal professional protection can be forfeited (subject to certain exceptions).
The client, not the attorney, has legal professional rights and does not count on the paperwork being in the possession of the lawyer.
Privileged records may be (and are often) kept by the client.
If no adversarial proceedings are contemplated, only records that constitute sensitive documents would be attached to legal professional privilege.
Communications made between a lawyer and his client for the purpose of offering or receiving legal advice and documentation proving those communications, including information that forms part of those communications’ spectrum.
For the purpose of privilege, the word “communication” is widely defined and encompasses a spectrum of information communicated in a variety of ways. It applies not only to written correspondence, but also to notes or memoranda recording oral conversations, lawyer-generated documents, records on IT systems and emails in the process of formulating legal advice.
A document must actually transfer material from the client to the lawyer or be intended for that reason in order to attract the right of legal advice. No correspondence may constitute a document that is not prepared for the purpose of being put before a lawyer for the purpose of receiving legal advice or that is not addressed and submitted to a lawyer explicitly for advice. For instance, a declaration prepared by an employee at the request of a boss to record the memory of events by the employee is unlikely to profit from the right of legal advice, even though the employee expects that the document would be passed on for advice to lawyers, because it is not a contact with a lawyer. The onward transfer of that declaration by a client for advice to their counsel would, however, benefit from the right of legal advice. In comparison, in the process of formulating legal advice, documents prepared by the counsel that are not actually transmitted to the client may attract privilege.
It comprises all members of the legal profession: judges, in-house lawyers, lawyers in Ireland, and international lawyers properly accredited.
It can also apply to legal executives, paralegals and trainee lawyers, where sufficient input from a trained solicitor is given.
Privilege would not occur if that is the case. In the case of in-house lawyers, a further exception exists in that correspondence between them and their clients may not be covered by privilege in the sense of antitrust proceedings carried out by the European Commission on the ground that, in such cases, in-house lawyers are not considered to be adequately separate from their clients.
For the purposes of legal advice privilege, the Irish courts have yet to consider in depth who the “client” is. ” For the companies, it is curcial to consider whether the person making the communication is a person engaged or employed to obtain or receive legal advice on behalf of the client. It may also be prudent to classify staff clearly for the purpose of representing the company as “the client” in its capacity and to ensure that appropriate messages are distributed only to the specified staff. It is necessary to ensure that privileged communications do not lose their privilege due to dissemination within the company to those who might not be considered “the client” for the privilege of legal advice.
Only communications that offer or request legal advice are associated with legal professional privilege. Usually, this includes advice on what should be done prudently and sensibly in a relevant legal context and advice on the feasibility or effects of such courses of action taken or considered by a client. In the light of legal advice given, it includes advice about how best to present evidence. Privilege would not be attached to strictly commercial advice.
A distinction between legal advice and legal assistance is also to be made.
Some records can be part-privileged, that is, they contain data that is protected by the privilege of legal advice and information that is not. In these cases, it is possible to redact the privileged details from the records disclosed.
In relation to legal advice privilege, the Irish courts have quoted with approval the expression “once privileged, always privileged” Legal advice right is, as such, permanent in duration. It persists for the remainder of the legal professional relationship and, long after the relationship has ceased, continues to work.
Litigation privilege protects confidential correspondence between a client and his attorneys, or any of them and a third party, from disclosure, where the primary or dominant object of the contact is to plan for litigation that is real or reasonably apprehended. In the form of administrative or criminal proceedings, or in Tribunals of Inquiry, litigation privilege may also be claimed over journals. Unlike the right of legal advice, the privilege of litigation applies to correspondence between the plaintiff and third parties other than their legal consultants.
There will be protection only for sensitive communications. No disclosure by or to the opposing party may be deemed confidential.
If such communications are not confidential in nature, communications made with third parties for the primary or dominant litigation intent may not warrant litigation privilege.
If litigation (or regulatory/criminal prosecution or Tribunal of Inquiry) is fairly apprehended, a ‘dominant intent’ test may be applied to protect any confidential information prepared for the dominant purpose of supplying or receiving legal advice in relation to that litigation or helping the conduct of that litigation as privileged. The right would certainly extend when a specific contact has been made specifically for use in litigation. However, for a number of reasons, records or correspondence are often made, only one of which may be to assist in the planning of real or fairly apprehended litigation. The right of litigation will only be attached to certain documents where the dominant object of the document is to be used in litigation. It can be troublesome to decide the intent of a text, especially as the test is one of supremacy and not exclusivity, and a restrictive approach has been taken by the Irish courts. However, on an objective basis, the court will determine the meaning of a text.
Before a claim of litigation privilege may be preserved, litigation must be “reasonably apprehended” while lawyers do not have to be advised to show that litigation is reasonably apprehended. An objective one is the measure as to whether litigation is properly apprehended.
The litigation protection does not extend beyond the relevant court proceedings or closely associated proceedings, unlike the legal advice privilege, which is indefinite in length. In deciding whether similar cases are considered to be sufficiently “closely related” to allow litigation privilege to endure, the Irish courts have taken a variety of factors into account. Therefore, the parties to the case cannot presume that a court would consider a connection between sets of proceedings to be necessary to find the proceedings “closely related” in order to retain privilege.