Privilege under English Common Law / Procedure
Legal advice privilege applies to: confidential communications, which pass between a client and her lawyer, which have come into existence for the purpose of giving or receiving legal advice about what should prudently and sensibly be done in the relevant legal context.
- This applies whether or not litigation is pending or contemplated.
- This does not apply to communications by a client or his lawyers and a third party.
- This is narrower in ambit than litigation privilege but can be more commonly claimed.
A document will not automatically attract privilege simply because it is communicated to a lawyer; it must also comply with the other necessary requirements to be privileged.
Privilege cannot be claimed unless the material in question is confidential. There can be no confidentiality, and therefore no privilege, in the following types of documents:
- attendance notes of meetings at which the parties were present;
- transcripts of proceedings in an open court.
A “lawyer” for these purposes includes solicitors, barristers, in-house lawyers, foreign lawyers, potentially legal executives and trainees and paralegals if properly supervised.
Legal professional privilege does not extend to other professional advisers who may give advice on points of law e.g. accountants providing tax advice. As a team of US tax accountants, we rely on Kovel letters in this context.
Communications made by in-house lawyers relating to management or administration, or which contain commercial advice, do not attract privilege.
There must be a lawyer in the communication for legal advice privilege to apply. While this is widely defined to include solicitors, barristers and foreign lawyers admitted to practice in their home jurisdiction, the term ‘lawyer’ does not extend to other professionals such as accountants, even where they are purporting to provide legal advice. Where a lawyer is not involved, legal advice privilege will not apply.
Only communications between a lawyer and a client will be protected by legal advice privilege. This does not mean that all communications which the lawyer has with any of the employees at the corporate client will necessarily be privileged. The term ‘client’ is narrowly construed under English law to refer only to individuals who, as a matter of fact, are authorized to give instructions to and receive advice from the lawyer concerning the issue in hand.
The definition of ‘client’ is very restrictive and therefore privilege will only attach to documents sent between the lawyer and the client as defined in the retainer.
Where the client is a company, privilege will only attach to documents communicated by those expressly or impliedly tasked with communicating with the lawyers.
What does legal advice privilege cover?
Advice as to legal rights and obligations, and advice as to what should prudently and sensibly be done in the relevant legal context. There may be a “relevant legal context” if the advice relates to rights, liabilities, obligations or remedies of the client under public or private law in a particular set of circumstances. It does not cover advice of a purely strategic or commercial nature which is not provided in any sort of legal context.
When does legal advice privilege apply?
- Applies whether or not litigation is pending.
- Only applies to communications between a lawyer and his client and will not generally cover internal documents generated by employees of the client, even if these documents are necessary to provide information to lawyers to obtain legal advice.
The general rule is that if a lawyer commits to paper, during the course of her retainer, matters which she knows only as a consequence of the professional relationship with her client, those papers will be privileged even if they are not sent to the client.