On the 23 February 2017 The Law Society issued a practice note to clarify the status and main principles of legal professional privilege (LPP). The practice note also serves to summarises practitioners’ duties with regards to LPP.
What is LPP? The LPP is one of the highest rights recognised by English law. It is a common law principle, jealously guarded by the courts. It arises when clients approach lawyers for legal advice or assistance with resolving contentious issues. LPP protects all communications between a solicitor or barrister and his or her clients from being revealed without the permission of the client. In some circumstances LPP also protects communications between lawyers and third parties known as “common interest privilege”. This will operate to preserve privilege, whether legal advice or litigation, in documents that are disclosed in this way. The common interest must exist at the time of disclosure to the recipient for this to apply.
LPP is a client’s right and lawyers therefore have a duty to advise the client of the availability of the right and their entitlement to assert it. Legal professionals must ensure that LPP is only asserted on behalf of their clients where there are proper grounds for doing so.
The main principles of LPP are:
- LPP applies to confidential communications between clients and their lawyers and, on occasion, between lawyers and third parties. It has two forms: legal advice privilege and litigation privilege.
- Legal advice privilege arises in relation to the giving or receiving of legal advice, or where communications form part of a continuum that aims to keep client and lawyer informed so that advice may be given as required. In the employment context, while HR consultants are a means of obtaining employment advice, it is important to note that communications between a company and an HR consultant are not necessarily protected by legal advice privilege.
- Legal and natural persons attract legal advice privilege. However (i) not all employees of a company are considered 'the client' for LPP purposes and (ii) communications between a corporate client and in-house counsel are not privileged for the purpose of investigations by EU institutions.
- Litigation privilege applies in relation to confidential communications between legal advisers or their clients and any third party if they are made for the sole or dominant purpose of conducting existing or reasonably contemplated litigation which is adversarial rather than investigative. Litigation privilege applies to proceedings in the High Court, the County Court, employment tribunals and, where it is subject to English procedural law, arbitration.
- The application of LPP to communications made in connection with internal investigations by corporations and regulated firms requires care. Practitioners need to consider (i) whether the information is capable of being privileged (ii) the statutory basis for any request to disclose privileged material (including the permissive but not mandatory provisions in the Data Protection Act) and (iii) whether or not there has been an express or implied waiver of LPP. In the employment context, it will rarely be the case that attendance notes made during investigation meetings with employees will be protected by privilege, even if those meetings are conducted by solicitors, so due care should be taken when notes are written during such meetings.
- LPP does not arise in relation to assistance with a crime, fraud or equivalent conduct (the ‘iniquity exception’). It is irrelevant whether a lawyer is aware of a client’s iniquitous purpose.
- Lawyers do not have to satisfy enforcement agencies or regulators that claims to LPP are well-founded, and the latter are not entitled to make this decision themselves. Independent counsel may have a role is assessing claims to LPP or the matter may need be determined by a court.
- No adverse inferences should be drawn by investigators or regulators from a claim to privilege or a refusal to waive it.
- Where LPP properly arises and has not been curtailed by parliament it cannot be overridden by competing private or public interests in disclosure.
- The Law Society considers that any form of pressure put on a client to waive LPP undermines the absolute nature of the protection.
There can be delicate and difficult balances to be drawn in some situations and for this reason it is critical that lawyers think very carefully in all circumstances as to the correctness and appropriateness of advising clients that LPP is available and that it is proper for the clients to assert LPP.
Disclosing information or material that is protected by LPP without a client’s consent may enable the client to challenge the subsequent use of the material and take civil action or make a regulatory complaint against the disclosing lawyer.
The obligation to assert privilege on the client's behalf is separate from, but overlaps with the obligation to preserve the client's confidentiality. In accordance with the SRA Code of Conduct, solicitors must keep the affairs of their clients confidential unless disclosure is required or permitted by law or the client consents (Outcome 4.1, SRA Code of Conduct 2011).
A solicitor's failure or refusal to ascertain, recognise or comply with professional or regulatory obligations, including requirements imposed by legislation or rules made pursuant to legislation, would provide a basis for the SRA making a finding of professional misconduct and, depending on the circumstances, potentially also a finding of dishonesty (in accordance with section 44D(1) of the Solicitors Act 1974 or paragraph 14B(1) of Schedule 2 to the Administration of Justice Act 1985 (see the SRA (Disciplinary Procedure) Rules 2010)).
For a more detailed guide on LPP and information on specific issues see the note written by The Law Society: http://www.lawsociety.org.uk/Support-services/Advice/Practice-notes/legal-professional-privilege/