Legal Professional Privilege is an important right in law that relates to all communications between a client and their solicitor, and sometimes to communications between a third party when it relates to litigation.
Our business dispute lawyers are here to explain the basics and how it may affect you before, during and after litigation.
Here we’ll be covering:
- What is Legal Professional Privilege?
- What are the two types of Legal Professional Privilege?
- What is Legal Advice Privilege?
- What is Litigation Privilege?
- In what circumstances is Legal Advice Privilege invoked?
- What’s privileged and what’s not privileged for the purposes of Litigation Privilege?
- How can Legal Professional Privilege be lost?
- Why is Legal Professional Privilege important?
- What steps can be taken to benefit from Legal Professional Privilege?
- Summary
What is Legal Professional Privilege?
Legal Professional Privilege (commonly abbreviated to ‘LPP’) is an important legal right. At its heart is the aim of protecting you, as a party to a dispute, from having to disclose confidential and potentially sensitive documents and/or information recorded in other forms – for example, images and audio recordings.
What are the two types of Legal Professional Privilege?
There are two types of Legal Professional Privilege that you need to be aware of:
Legal Advice Privilege (LAP)
Legal Advice Privilege (LP) can be summarised as confidential communications between lawyers and their clients, made for the purpose of seeking or giving legal advice.
Litigation Privilege (LP)
Litigation Privilege (LP) is defined as confidential communications between lawyers and their clients, or the lawyer or client and a third party, and other confidential documents which come into existence for the dominant purpose of being used in connection with actual or pending litigation.
There are strict rules as to when each type of LPP is applicable. Whether a document or oral evidence is privileged is a question of substance, not form, so just marking documents as 'confidential and privileged', or forwarding them to a lawyer, cannot automatically make a non-privileged document a privileged one.
It’s important to highlight that LPP ‘belongs’ to the client, and your lawyer is under a professional obligation to maintain that privilege until it’s waived by you. There are statutory exceptions where the right to absolute privilege will be revoked, but not many.
What is Legal Advice Privilege?
Legal Advice Privilege (LAP) protects confidential written or oral communications between a lawyer and you for the purposes of giving or receiving legal advice, or which reflects such a communication. To attract the protection of LAP, litigation does not necessarily need to be contemplated or pending, but it’s worth knowing that this type of privilege prevents you from insisting on disclosure of these types of documents during litigation. LAP is narrower in scope than Litigation Privilege (discussed below), but is claimed more often.
What is Litigation Privilege?
Litigation Privilege (LP) protects confidential written or oral communications between you or your lawyer on the one hand and third parties on the other, or other documents created by or on behalf of you or your lawyer, which come into existence once litigation is existing or in contemplation, and which are created mainly for use in the litigation (N.B. ‘litigation’ in this context also includes arbitration).
If a document is protected by LP, you can withhold inspection of it, but you must still identify the document in the disclosure list of documents which is required in civil proceedings. Crucially, no adverse inference can be drawn by the court if privilege is claimed.
In what circumstances is Legal Advice Privilege invoked?
A lawyer must be directly involved
The purpose of LAP is to allow free access to a lawyer’s professional skill and judgment – this means that there must be a lawyer involved directly in the communication for LAP to apply. ‘Lawyer’ in this context is widely defined to include solicitors and barristers, as well as any staff such as trainees, paralegals or secretaries being supervised by the lawyer and helping to give legal advice in the context of the professional relationship between their solicitor employer and you, as well as foreign lawyers qualified to practice in their home jurisdiction.
If a lawyer is advising you but doesn’t have a practising certificate because they’ve been struck off, there can be some protection afforded to you by way of LAP, but the burden is on you to show that you believed the lawyer was appropriately qualified at the time of instructing them.
What about in-house lawyers?
With in-house lawyers, any management, business, or administrative communications are unlikely to attract professional privilege and so anything relating to that aspect of their function should be kept entirely separate from any legal communications, so as not to risk losing privilege.
The court will look at whether they gave the advice in their professional capacity as a lawyer and whether the advice relates to your rights, liabilities, obligations, or remedies under private or public law.
What about other professions?
LAP doesn’t extend beyond members of the legal profession, and so even exactly the same legal advice given from any other professional won’t attract privilege.
There are some very limited cases where Parliament has extended privilege to other professions, but generally speaking, this is the exception rather than the rule. Any extension of privilege to advice given by non-lawyers will be a parliamentary decision, but for now, if a lawyer isn’t involved in the communication, LAP is unlikely to attach to it.
An ‘authorised’ client must be present
Only communications between a lawyer and an ‘authorised client’ will be protected by LAP. This doesn’t mean that all communications your lawyer has with any other employees at your company will automatically be privileged. This is because as the law currently stands, the term ‘client’ is narrowly taken to refer only to individuals who are authorised to give instructions to and receive advice from the lawyer, on the legal matter in question. In practical terms, this means that as long as any legal advice is shared only with the designated client team within your organisation who need to know what it is in order to make decisions about the case, then it should be covered by LAP.
There must be a communication
For LAP to apply, there must be a communication between you and your lawyer, or a document which reflects such a communication.
Documents that haven’t actually been communicated between you and your lawyer may not be privileged.
Draft requests for legal advice may be privileged, but otherwise draft memos that don’t have a clear intention to be and are not in fact communicated to your lawyer as draft requests for advice are unlikely to be.
The rules are more flexible where non-communication is down to your lawyer rather than to you. Where documents are prepared in the course of giving legal advice to a client, they will generally be seen as part of your lawyer’s preparatory work for you and they will therefore be covered by privilege, even if they aren’t actually communicated to you.
The communication must be for the purpose of giving or receiving legal advice
LAP arises in the context of the giving or receiving of legal advice. The term ‘legal advice’ is widely defined and covers advice in a relevant legal context, which may also extend to documents evidencing the substance of confidential communications passing between you and your lawyers for the purpose of giving or receiving legal advice. This could include advice on how to present your case to an inquiry, for example, but may not cover situations where the lawyer is acting as your general business adviser.
If a lawyer is involved for convenience and not in the active capacity as the specifically instructed lawyer in a case, documents wouldn’t attract privilege.
Background documents sent to a lawyer when seeking legal advice won’t be privileged if they existed before the need to seek legal advice arose, unless they were already protected by a pre-existing privilege, but the actual request for advice would benefit from privilege, whether it is made orally or in writing.
Key principles relating to whether content is legal advice for the purposes of LAP
- The party claiming privilege bears the burden of proof
- Affidavit statements regarding privilege are not definitive, but evidence of facts which may require independent proof
- It’s difficult to go behind an affidavit while the legal process is ongoing, and an affidavit is generally final unless doubt is cast on it from other sources
If you can prove that documents form part of ‘a continuum of communication and meetings’ between you and your lawyers, the object of which was the giving of legal advice as and when appropriate, you shouldn’t have to redact the primary documents sent by your lawyers, so these documents would be entirely privileged.
Wider communication of Legal Advice Privilege
Communication of privileged advice from you as the recipient within the company to your employees (if they need it for the purposes of their work, or if it’s to be given to your board of directors) shouldn’t cause loss of privilege, provided this doesn’t involve the loss of confidentiality.
Board minutes can be a tricky sticking point: board minutes summarising or attaching a copy of legal advice received will be privileged, but if the minutes go on to discuss the advice or what it means for the situation, the privilege may be lost.
What’s privileged and what’s not privileged for the purposes of Litigation Privilege?
LP arises from the principle that a litigant (you) or potential litigant should be free to seek out evidence without being obliged to disclose the results of their research to the other side. For LP to apply, the material must:
- Be a communication between a lawyer, acting as a lawyer, and you as their client; or
- Be a communication between either a lawyer or client or a third party, i.e. confidential documents created by any of these parties, which came into existence for legal advice to be sought or given regarding contemplated or existing litigation, even if not actually communicated. (Similarly, a lawyer-to-lawyer communication made on behalf of the same client will benefit from litigation privilege if it satisfies the other requirements); or
- Be a document created by or on behalf of you or your lawyer.
The material must also:
- Be made for the dominant purpose of litigation, meaning proceedings in the High Court, the County Court, employment tribunals and arbitration. (In respect of other tribunals, public inquiries or statutory investigations, the only guidance is that litigation must be ‘adversarial’, not investigative, or inquisitorial); and
- Litigation must be pending, reasonably contemplated or existing (‘litigation reasonably in prospect’ means ‘may happen’, and that there’s a real prospect of litigation – more than a mere possibility but not necessarily greater than 50% – would satisfy the test of ‘reasonably contemplated’ for this purpose); and
- Be confidential.
An assertion of privilege and statement of the purpose of the communication in a witness statement may be supportive, but this is evidence of a fact which might require proving independently. An affidavit is conclusive, unless from other evidence this is considered to be incorrect.
It’s the purpose of the person who was behind the creation of the communication that’s relevant, but if one party has ‘actively deceived’ the other party to a document and they had an alternative purpose, the ‘fair and correct’ way of assessing the dominant purpose is to look at the other party’s purpose, which may in turn mean that the dominant purpose is not then the litigation.
There can be no confidentiality (and therefore no privilege) in the following types of document:
- Transcripts of proceedings in open court.
- Attendance notes of meetings where both parties were present.
- Telephone attendance notes of conversations between lawyers of both sides (apart from if the note contains additional comments about the case by the solicitor, unless these notes can be redacted so the remainder of the note can be disclosed. If redaction isn’t possible, the note will be treated as privileged).
How can Legal Professional Privilege be lost?
Waiver of LPP involves voluntarily producing documents where there would otherwise be a right to object to this. This might be by placing privileged documents before a court, for example. The waiver may give rise to an obligation to produce further associated privileged documents, known as collateral waiver, to prevent a partial disclosure to the court. You could also choose to waive privilege over certain material (for example, a corporate entity can self-report to a regulator). This has wider implications than where there is simply a loss of confidentiality in one or more documents.
It's important to highlight that no LPP can attach to communications between opposing parties (although without prejudice privilege prevents full disclosure of some documents). However, privilege could be waived on a selective basis to a third party, so that it’s disclosed to that party for a certain stated purpose set out in a contractual undertaking, but remains privileged for all other purposes.
Confidentiality
Confidentiality is essential to privilege. Not all confidential documents are privileged but all privileged documents are confidential. If a document enters the public domain, it ceases to be confidential and will lead to a loss of privilege. As such, it’s important not to circulate privileged material too widely. If there’s only limited disclosure to named individuals, this is unlikely to amount to putting documents in the public domain and in this case they would remain privileged.
Employee use of company’s IT systems
There are risks for an employee in using work IT systems for private communications, because of the lack of confidentiality as against the employer. If an email is sent from a work email account, that email and any attachments may not attract LPP as the email is unlikely to be found to be confidential as against an employer. Emails sent and received on an employer’s IT system or attachments created on it are generally regarded as company property, and so not confidential.
Provision of written commentary
Providing written commentary on legal advice is risky, as that commentary may not itself be privileged. The exception to this is where the sender is acting as an in-house lawyer and giving legal advice.
Why is Legal Professional Privilege important?
LPP is crucial in allowing all businesses of all sizes to access professional legal advice and not have to disclose the details relating to that advice – or from having to disclose the findings of document searches/information relating to existing or future litigation. This is all critical in allowing your business to function with the confidence that you’ll be afforded some privacy for matters which may be commercially sensitive. If privilege were to be lost for communications between lawyers and third parties, this might risk corporations failing to seek legal advice when required or failing to engage in the self-reporting process. Both of these things might lead to corporates acting in ways in which they shouldn’t and less overall transparency as to how they have acted.
What steps can be taken to benefit from Legal Professional Privilege?
There are several steps that can be taken to improve the prospects of successfully claiming LPP:
- Ensure that information remains confidential and so retains LPP by marking the document as ‘confidential and privileged’ and ‘not for onward circulation’. You can circulate privileged material, but this should only be limited disclosure to named individuals. You could also try using confidentiality agreements, which our commercial contract solicitors can assist you with drafting.
- If you need to disclose a document which would otherwise have been privileged, you could waive the privilege on a selective basis to a third party, but ensure that you get a signed contractual undertaking in writing which is suitably precise and drafted by a lawyer, so that the document remains privileged for all other purposes.
- If an external lawyer is instructed, ensure that the scope of the work to be done and advice to be given is confirmed in writing from the outset. Any proceedings contemplated must also be confirmed in writing as soon as a lawyer is instructed (or if already instructed, as soon as proceedings are contemplated, and this needs to be pinpointed as precisely as possible between the lawyer and your business).
- Be mindful that if there’s an international element to your dispute which means that the legal advice you’ve been given has to be shared elsewhere, the rules on privilege can vary between different countries in that what’s privileged in England and Wales might actually be classed as disclosable in another place. This can potentially have serious knock-on consequences.
- When commissioning a report, a company should ideally record whether litigation is contemplated and clearly mark it as such, keeping a paper trail of documents created and collected for this purpose. Claiming legal privilege over documents which come into existence before this is done would typically be more difficult.
- Depending upon the size of your business, you may wish to consider including a key employee in any committee managing documentation being sent and received to a legal adviser, in respect of an investigation or potential litigation, to improve the prospects of communications with that person being covered by LAP under the current restrictive definition of ‘client’.
Summary
Legal Professional Privilege is a complex and delicately balanced area that’s extremely important when it comes to the dispute resolution arena. Seeking legal advice at the outset of any potential dispute is strongly advised, so that your business can exploit the benefits of specialist advice straightaway and ensure that everything that can be kept confidential to safeguard your company’s interests remains that way.
