Privilege is a civil right that is fundamental. It enables individuals and corporate agencies to avoid confidential and sensitive data disclosure. There are specific guidelines on whether, under English law, privilege applies: not all interactions with lawyers and other contractors would be covered. By distributing privileged information without sufficient protections, privilege may be lost.
Privilege is a fundamental legal right and a strong legal weapon under English law, granting the right to resist disclosure of confidential and potentially sensitive information to persons and private organizations in the form of arbitration, lawsuits and investigations. Under English law, there are two major forms of privilege: privilege for legal advice and privilege for litigation. When each form applies, there are strict rules for
A matter of substance rather than form is whether a document is protected: merely labeling documents as privileged and confidential, or forwarding them to a lawyer, does not turn a non-privileged document into a privileged one. The rules and definitions set out below illustrate when, as a matter of English law, privilege can apply. All correspondence with lawyers and other non-legal advisors should not be considered to be shielded from disclosure. Although, under English law, privileged documents may be circulated, this must be done with the utmost care. Confidentiality is essential, and in the absence of sufficient protections, privilege may be lost by circulating privileged content.
The right of legal advice covers (written or oral) confidential correspondence between an attorney and a client in order to give or obtain legal advice. The right of legal advice often preserves records that represent such contact.
For legal advice privilege to apply, a lawyer must be present in the conversation. While this is generally defined as involving attorneys, barristers and international lawyers admitted to practice in their domestic jurisdiction, the word ‘lawyer’ does not refer to other practitioners such as accountants, even though they are intended to offer legal advice. Where a lawyer is not involved, the right of legal advice may not apply.
English law does not draw any distinction in private practice between in-house attorneys and lawyers. However, the European Court of Justice has ruled that correspondence between a corporation and its in-house lawyers are not covered by the right of legal advice in the light of EU antitrust investigations; this is on the grounds that, unlike external lawyers, in-house lawyers are not considered to be sufficiently autonomous.
Legal advice privilege can cover only correspondence between a lawyer and a client. This does not imply that any contacts that the lawyer has with any of the corporate client’s staff are inherently privileged. Under English law, the word ‘client’ is strictly interpreted to apply only to people who, as a matter of fact, are allowed to give orders and obtain advice from the lawyer on the issue in hand.
Under litigation privilege, interactions can be privileged under English law between lawyers and workers who are not part of the corporate client party. This is clarified below.
As a general rule, there must be a correspondence between a lawyer and a client, or a document that represents such a communication, for the legal advice privilege to extend under English law.
Under English law, the right of legal advice exists in the form of providing or obtaining legal advice. The word ‘legal advice’ is generally interpreted to include advice provided in ‘a relevant legal context’: this includes advice on how to address a case to an investigation, but does not include cases in which the lawyer serves as a general business counsel and advises on, for example, investment or finance policy or other business matters. This is where, when deciding whether or not a specific piece of advice given by an in-house lawyer attracts legal advice privilege, problems may often occur in practice.
Privilege of litigation covers confidential written or oral correspondence between the customer or lawyer (on the one hand) and third parties (on the other) or other documents generated by or on behalf of the customer or his lawyer that occur after the litigation is proposed or has started and which are used for the dominant purpose in the litigation. Arbitration here requires the word ‘litigation’.
The right of litigation is broader than the privilege of legal advice and can cover emails and documents prepared in preparation for arbitration by accountants and other non-legal advisers. Unlike the privilege of legal advice, which allows a lawyer to interact, correspondence with or information generated by non-legal advisers may be privileged under English law if the privilege of litigation applies.
Privilege in litigation occurs only when litigation (or arbitration) is pending or contemplated. There does not have to be a likelihood of litigation greater than 50 percent, but litigation must be more than a mere possibility: it is not simply sufficient for there to be a distinct possibility that anyone could bring a claim sooner or later.
Even if litigation may be said to be ‘in contemplation’ or to have started, the main object of the correspondence must be to be included in the litigation that is real or contemplated. As the reigning, prevailing, supreme or most influential purpose, the word’ dominant purpose ‘has been established. Where there is more than one intent of a communication, the court shall critically determine its purpose, taking into account all the applicable circumstances.
Often it might be appropriate to circulate legal advice beyond the client community (those people inside the client who deal with the matter on a regular basis) to the board of directors, for example, who may not constitute ‘the client’ for the purposes of legal advice privilege. Under English laws, this is probable, but it must be done carefully.
A central aspect of privilege is secrecy. The lack of privacy would result in a loss of right. Therefore, it is critical that privileged content is not too widely circulated.
It is important to mark the document as ‘confidential and privileged’ and not for onward dissemination when you distribute privileged information, and to stress to the recipients the importance of treating the material as confidential.
As the comment may not itself be privileged, the sender should refrain (as far as possible) from offering any written commentary on the advice. The exception to this is where an in-house lawyer offering legal advice is the sender.
In circulating legal advice to third parties outside the corporate client, including regulators and prosecutors, the same threats occur. It would be wise to specify, in addition to the above protections, the limited reason for which the advice is being disclosed and to make it clear that no wider waiver of privilege is intended. Agreements on confidentiality may also be necessary.
Labelling can help to preserve privilege as a practical measure, at least by helping to avoid inadvertent wider dissemination of privileged content. It is possible to use portals and/or ‘read only’ documents in appropriate cases.
It is advisable to prevent, as far as possible, the transmission by email of especially sensitive information, as the limits of dissemination are more difficult to control. To mitigate risks, put IT protections in place.