legal advice privilege

Legal advice privilege (sometimes known as “advice privilege”) is a form of legal professional privilege which protects communications between a solicitor and acting in his professional capacity.

The form of privilege acts as a procedural and substantive legal right and has effect when litigation is not in progress or within contemplation of obtaining or giving of the legal advice in question. As such, it does not protect all communications between a lawyer and the client. When it applies, the client is not required to disclose the contents of the communication to a court (by way of disclosure or otherwise), the police, or any other authority, subject to limited statutory exceptions.

Legal Advice Privilege

The privilege is fundamental to the proper administration of the justice system because it means that a client and a lawyer is able to communicate frankly and openly about the client's case, so that the client s able to receive fully informed legal advice.

The client is able to explain what he did or did not do, with the confidence that the communications will not be disclosed to the third parties, an opponent, or to the court. It applies before litigation commences, during litigation so that court documents such as statements of case, witness statements, affidavits, tactics are able to be considered and prepared without enquiry or disclosure to others.

Requirements

The relevant communication, whether oral in or documentary form, must be made in circumstances which are:

1. confidential; and
2. for the purpose of obtaining or giving legal advice (i.e. made in the solicitors professional capacity).

The privilege extends well beyond protection of formal opinions or advice in respect to the substantive legal rights and obligations. it includes:

1. communications made to keep the solicitor informed of relevant events;
2. what may or may not be prudently done during the course of the retainer;
3. how a case may be presented to a tribunal which does not exercise judicial power (such as a planning inquiry, General Medical Council proceedings, or coroner’s inquest), and
4. statements of bills of costs and disbursements.

When assessing whether the communication is covered by legal advice privilege, the court will look for some discharge of the solicitor’s professional duty in the capacity of a legal advisor.

Where third parties for the client act as agent for the client (such as the officers of a company, its employees and contractors or in-house solicitors) when communicating with the solicitor, privilege will usually extend to such communications, as will communications initiated by the solicitor with third parties, provided the purpose for the communication was to obtain or give legal advice.

Privileged Documents and Communications

Documents commonly falling within the scope of legal advice privilege include:

1. notes made during the course of meetings with clients;
2. instructions to experts which are not subsequently relied upon in court;
3. instructions and briefs to counsel;
4. opinions prepared by counsel;
5. advices and drafts.

It follows that not all information on solicitors’ files will be protected by legal advice privilege (but note the effect of litigation privilege). For instance, documents in the public domain on a solicitor’s file (such as an assignment of rights or property, searches), diary notes or attendance notes of meetings with third parties, communications for the furtherance of a crime, or information obtained other than by way of confidential communication with the client.

Steps may be taken to enhance the privilege and ensure that it is not lost by limiting communication of legal advice to others within a business and elsewhere with an emphasis on confidentiality. Also instructions to third parties should emanate from lawyers where it is made clear that the communication with the third party has the dominant purpose of litigation (whether actual or contemplated).

Ownership

The privilege belongs to the client and not the solicitor, and there it is only for the client to assert or waive privilege and not within the power of the solicitor to do either. In the event of the appointment of a liquidator or administrative receiver of a company, the privilege will vest with that person and not the directors of the company.

The privilege is a substantive right, and not just a rule which excludes evidence from court litigation.

Loss of Privilege

The communications remain privileged if and for so long as the communication remain confidential. Advice privilege may be lost by the client by:

1. forwarding copies of documentary communications to any third party; or
2. by informing third parties of the nature and substance of the legal advice given or obtained.

The loss of privilege by in this way is likely to assessed by reference to the law of confidential information. Thus, again, a claim for privilege may only be maintained for so long as the information remains confidential. Accordingly, when the quality of confidence is lost, so is the privilege. So, if a document is read by a third party (although it may not have passed into his possession, custody or control), privilege is lost.

Privilege is not lost on the death of the client, and vests for the executor or administrator of the estate to assert or waive. In the case of companies, legal advice privilege will probably vest in the Crown bona vacantia when it is dissolved, subject to a re-vesting in the company when or if the company is restored to the Register.

Privilege cannot attach to a solicitor unless or until he has been retained (whether formally or otherwise), however documents prepared for instructing a solicitor are likely to be protected.