According to English law, the privilege of legal advice applies to confidential communications between a client and his lawyer with a view to providing or receiving legal advice or assistance in an appropriate legal context.
It is settled law that, provided the above conditions are met, legal advice privilege (and indeed, litigation privilege) will be extended to foreign lawyers.
It is also settled legislation that the lex fori (i.e. the law of the forum) will be applied to privilege issues by the English courts. This will be the case, for instance, even if the claim is governed by foreign law or the respective communications take place in a foreign jurisdiction. In other words, English law will govern questions of privilege, provided the English courts have jurisdiction over the claim.
Context
The judgment stems from a claim brought against four high-net worth individuals by PJSC Tatneft (‘Tatneft’) for their alleged involvement in a fraudulent system. That assertion is regulated by Russian law.
The judgment arises from a request made in those proceedings by the Second Defendant challenging Tatneft’s claim to privilege over certain of its internal communications. Tatneft provided standard disclosure and, among other things, asserted the privilege of legal advice over certain categories of documents, thereby withholding them from inspection.
In correspondence, Tatneft confirmed that its claim to the privilege of legal advice included communications between its staff/officers and members of its internal legal department. Importantly, Tatneft also confirmed in the context of this judgment that the members of its internal legal department were qualified Russian lawyers but did not have “Advocate” status in Russia (explained further below).
The Second Defendant brought an application on the ground that the privilege of legal advice should not extend to communications with, or documents produced by, any Russian in-house legal advisers other than Advocates.
Submisiones of the Parties
The Second Defendant submitted that the “status” of the “lawyer,” not just its function, should concern the Court. In particular, it has been argued that, under English law, the privilege of legal advice only applies to:
“Professional lawyers,” i.e., professionally qualified legal advisers and members of professional bodies.
In-house lawyers, if they are regulated and admitted to practice by in-house lawyers.
Foreign lawyers if they are “qualified appropriately.”
The Second Defendant argued that the in-house lawyers of Tatneft failed to fulfill the above criteria on the basis that:
An Advocate is an independent legal advisor admitted to the Russian bar, and the Ministry of Justice of the Russian Federation maintains a Register of Advocates.
In-house legal practitioners are not lawyers.
Under Russian law, there is a legal concept of “advocate’s secrecy,” which under English law is similar to legal professional privilege and does not apply to lawyers who are not advocates.
On the other hand, Tatneft argued that the English courts have traditionally not investigated the regulatory or training standards applied to a foreign lawyer and acknowledged that the privilege of legal advice is not limited to barristers and solicitors, provided that the advice is sought from a “variety of lawyers.” Tatneft therefore argued that it was irrelevant as a matter of English law. The Court consented.
Judgment
Citing Three Rivers (No 6) [2005] 1 AC 610, Ms. Justice Moulder began by considering the rationale underpinning the privilege of legal advice, namely that it is in the public interest for clients to obtain legal advice and to keep those communications confidential.
She explained that the English Court had extended the privilege of legal advice to foreign lawyers, consistent with this approach. Special emphasis was placed by Moulder J on the judgment in R (on the application of Prudential plc et al) v Special Commissioner of Income Tax [2013] UKSC 1, which recognized and endorsed a broad approach to the privilege of legal advice applied to foreign lawyers.
She noted that a functional approach to the question had been adopted both by the majority opinion and the dissenting opinion (by Lords Neuberger and Sumption, respectively). Indeed, it was noted in Prudential that the privilege law of legal advice had been extended to foreign lawyers, irrespective of foreign national standards or regulations or training or discipline standards, and that such standards were not subject to the supervision of English judges. Significantly, Moulder J cited the explanation by Lord Neuberger of the extension of the privilege of legal advice to foreign lawyers “based on fairness, comfort and convenience.”
Moulder J concluded that the English courts are more concerned with the “function” of the client-foreign lawyer relationship (i.e., protecting a party who wishes to take legal advice) and not the foreign lawyer’s “status.”
Moulder J also considered two decisions on which the Second Defendant had sought to rely on an argument that the privilege of legal advice was limited to “professional lawyers or qualified lawyers.” A patent agent was considered by one authority and a solicitor was struck off by the other. Moulder J concluded that they had no bearing on the issue, noting that the cases did not concern foreign lawyers who had been “treated as separate categories and justified by a different approach” by the authorities.
Moulder J further noted that, for a number of reasons, the Second Defendant’s interpretation of legal advice privilege would be problematic in practice. First, in order to determine in each case whether the privilege of legal advice was applied, if the English Court had to conduct an investigation into specific national standards or regulations in other countries, this would lead to uncertainty and inconvenience. Secondly, if the Court were obliged to express its views on the qualifications and regulations of foreign lawyers, it would raise questions of comfort. Third, excluding all in-house lawyers and a large proportion of other lawyers working in Russia would have the effect of doing so, which would be both unfair and inconvenient. In fact, Tatneft provided expert evidence that approximately half of the representatives in Russian civil disputes, including those in Arbitrazh courts, are not lawyers and that “the workers of most international law firms operating in Russia are employed under contracts of employment and do not hold the status of lawyer.” Moulder J noted that the problematic implications of the Second Defendant’s application of the rule showed precisely why the English Court preferred a functional approach to the issue.
The Second Defendant also argued that Tatneft’s in-house lawyers should not be recognized because (a) it is necessary to regulate English in-house lawyers and generally hold a practice certificate and/or (b) in-house lawyers are paid and not independent employees. These points have been firmly rejected as well.
On the first point, Moulder J held that “once one acknowledges that the court will not investigate whether a foreign lawyer is regulated or registered, I seem to follow the inclusion of foreign in-house lawyers as a matter of both logic and principle.” She noted that it would be unfair if the Court refused to extend the privilege of legal advice to in-house lawyers in Russia on the basis that they were unfair. Given that in-house lawyers in Russia can not be lawyers, the privilege of legal advice can never extend to communications with in-house legal advisers in Russia on that basis.
On the second point, Moulder J held that the English Court had firmly rejected the assertion that in-house lawyers were not independent and paid employees in relation to English in-house lawyers and that there was no reason to deny foreign in-house lawyers the application of the privilege.
Moulder J concluded:
The privilege of legal advice extends to interactions with foreign lawyers, whether or not they are in-house (and thus employees).
“As a general matter, the English Court will not inquire into how or why the foreign lawyer is regulated or what standards under local law apply to the foreign lawyer; the only requirement is that they “should act in the capacity or function of a lawyer.
There is no additional requirement for “appropriately qualified” or recognized or regulated as “professional lawyers” by foreign lawyers.
The second defendant’s request was therefore dismissed.
Conclusion
This is an entirely welcome decision by the English High Court to reassure clients receiving legal advice from their international legal advisers (in-house or external) that the English Court will continue to respect the confidential integrity of their communications and documents and to ensure a wide parity of treatment between English and foreign legal advisors’ communications. It reaffirms and clarifies the functional approach of the English Court to the privilege of legal advice when applied to foreign lawyers (and, by extension, to foreign in-house lawyers), guided by the principles of equity, comfort and convenience.