Privilege
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The JC’s guide to electronic communication
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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***
This article is about legal professional privilege in a commercial context. For a discussion of privilege in a criminal context, see Lucy Letby: waiver of 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.