Privilege
|
The JC’s guide to electronic communication
|
Legal privilege
/ˈliːɡᵊl ˈprɪvᵊlɪʤ/ (n.)A fundamental legal principle that protects the confidentiality of communications between a lawyer and client and, in limited cases, third parties, to ensure the client can obtain candid legal advice freely and openly without any risk it will be revealed to anyone or used against the client. Legal privilege applies automatically to in-scope communications.
***PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT***
General
Legal privilege is one of those things that can be very complicated on the surface but, deep down, is quite simple.
What you tell your lawyer, and what your lawyer tells you, in private, is not just confidential, but super-confidential. Confidential plus.
Those surface complications can be very counterintuitive. Whereas a court or regulator may compel anyone to disclose normal confidential information, legally privileged information it may not. Legal privilege is sacred.[1]
Generally, a court cannot force you to disclose what you told your lawyer, or your lawyer told you. Nor can the police, nor the Crown Prosecution Service. But in limited cases, it can ask you to and, if you don’t agree, this might tank your case. One of those limited cases is in play for Ms. Letby.
The point of legal privilege is to ensure that, behind closed doors, you and your legal advisers can speak freely and without prejudice: you can tell them everything you know, however embarrassing, damaging or revealing. They can give you honest tactical advice in light of what you have told them, without fear of prejudicing your case. They can be candid with you. They can engage in hypotheticals and war-game alternative strategies, such as pleading guilty or negotiating a plea bargain, all without any risk any of the discussion will wind up in court being used as evidence of your guilt.
Your legal privilege holds even if you say, “I did it. I murdered them all.”
Even here, your legal adviser is bound by her sacred duty not to disclose your communications. It may limit the things she can say or plead in your defence, but she cannot disclose what you have said or even hint at it, without your permission.[2]
Legal privilege is absolute.
Waiver by disclosure
Legal privilege is also delicate. If you do disclose privileged legal advice to anyone who is not a lawyer,[3] even by accident, your legal privilege is lost forever.
The cat cannot be put back in the bag. Your adversary can demand that you put a non-privileged communication of legal advice before the court. If that legal advice says, “Well, I guess we could try it, but I think you will probably lose this one, buddy,” this could be very damaging to your case.
Hence, it is very, very important to keep your legal advice confidential. Keeping it confidential maintains legal privilege. A lawyer is an agent and a fiduciary. As for any agent, a lawyer may not tell anyone anything on behalf of her principal — her “client” — without her client’s permission. This is true of criminal defence, civil litigation and commercial negotiation. In the legal vernacular, a client’s permission comes in the form of “instructions”. These need not take any form — they may be oral, or even implied — but they must be clear.
Instructions are, in as far as they go, effectively a waiver of the sacred bond of confidentiality between a lawyer and her client.
Any legal submissions made on a client’s behalf must be made “on instructions”.
Now: it is true that a good lawyer is instrumental in helping her client formulate her instructions — for example, it is beyond doubt that Ms. Letby was heavily guided by her counsel’s advice in the conduct of her defence — but nonetheless, the point remains: every single public word uttered on a client’s behalf by any lawyer in any context must be uttered with permission.[4]
Permission to break the sacred bond of confidence.
So when, on instructions, a lawyer mounts a defence, makes a submission or files an application to the Criminal Cases Review Commission, in a trivial way his client is “waiving” that sacred bond of confidence and privilege, but only as far as one might infer this is what the client has instructed her lawyer to do.
However, such an action does not entail any further disclosure of the context, background, motivation, discussions or rationale that led up to the lawyer’s advice or regarding that action, or the client’s instructions about it.
Commercial privilege: be very careful
First thing: even if you are a private practice litigation lawyer, assuming that litigation privilege will always apply and that you can say what you like in correspondence concerning litigation, is a bad idea. If your client is guilted into waiving privilege, your cavalier statements might be broadcast live on the BBC. Just ask Amy Prime, a litigation trainee from Womble Bond Dickinson, who sent this to her clients at the Post Office:
“For now, we’ll do what we can to avoid disclosure of these guidelines and try to do so in a way that looks legitimate. However, we are ultimately withholding a key document, and this may attract some criticism from Freeths. If you disagree with this approach, do let me know. Otherwise, we’ll adopt this approach until such time as we sense the criticism is becoming serious.”
Inhouse legal eagles
On the subject of legal advice privilege — or for that matter litigation privilege attaching to communications to or from your internal legal team:
There is none, now that Serious Fraud Office v Eurasian Natural Resources Corporation is a thing. Andrews J’s High Court judgment in Serious Fraud Office v Eurasian Natural Resources Corporation has been overruled... more to follow.
In the High Court, Andrews J held:
- General Legal advice privilege covers only communications actually between you and your solicitor (“you” being that part of your corporate organisation given over to doing things like speaking to lawyers — i.e., the legal eagles), and not communications between your other, non-legal employees when preparing to communicate with said solicitor (See Three Rivers No. 5); and
- Litigation privilege is a more powerful, deeper magic, but communications must be sent with the “sole or dominant purpose of preparing for contemplated litigation”, and “litigation” doesn’t include regulatory investigations, commissions of inquiry or the proceedings of a regulator.
In the Court of Appeal, they took a different view.
See also
References
- ↑ There is an entire industry of earnest toilers dedicated to combatting regulators’ tendencies to require disclosure of merely private information by means of the non-disclosure agreement. They are not relevant here. (They are not wildly relevant anywhere else, for that matter, but let us park that discussion.)
- ↑ At the limit, if you put her in a position where she would be misleading the court — for example, if you said, “I wilfully murdered them all, but I instruct you to deny this to the court and conduct my defence on the basis that I did not”, she might be obliged to resign your case, but even then she may not give her reasons for doing so or disclose what you have said.
- ↑ There are limited exceptions: they are among the surface details. Do not let them distract you.
- ↑ “Express or implied”, my dear legal eagles.