legal professional privilege

Legal professional privilege protects confidentiality of communications between a lawyer and their client, where the communications are prefatory to or for the purpose of receiving legal advice. The purpose of the legal professional privilege to protect client and solicitor/lawyer communications from disclosure so that they can have full and frank communications and discussions in respect of case of the client. Privilege is an extension to confidentiality. The lawyer has a duty to keep the affairs of their client confidential. The effect of the principle is that neither a lawyer nor the client can be required to disclosure the content of the communications in the absence of the consent of the client. Privilege is not owned by the lawyer, but by the client. The lawyer has a duty to protect it unless otherwise instructed to do so.

Reasons for Privilege

Legal professional privilege was summarised by Lord Taylor CJ in R v Derby Magistrates Court Ex p. B (1996):

“… The principle that runs through all [the authorities] is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.

Legal Professional Privilege

General features of legal professional privilege include:

1. arises out as a relationship between a client and the lawyer;
2. unless the communication or document was confidential, privilege cannot arise. Confidentiality is an essential requirement;
3. Where privilege exists, is absolute: there is no balancing exercise with any other right, such as public policy or public interest;
4. is a procedural and substantive legal right;
5. may be waived by the client;
6. may exist in one or both of two forms, namely legal advice privilege and litigation privilege, and thus may protect the same communication or document concurrently;
7. extends to legal advice sought or given whether concerned with public law or private law issues, whether adversarial or inquisitorial in form, whether held in public or in private, whether or not directly affecting his rights or liabilities;
8. extends to foreign lawyers, as well as limited categories of professions, such as Trade mark Attorneys and Patent Attorneys;

The privilege underlies the effective administration of justice, in that those instructing lawyers are able to discuss frankly what did or did not happen within the context of the case, in the knowledge that communications will not be required to be disclosed upon inquiry by a court, police, other investigative authorities, or anyone else. There are narrow exceptions to production of the content of communications in cases where the privilege has been used to facilitate a crime or fraud.

It continues to persist after the death of an individual or dissolution of in incorporated entity. Consent to the disclosure of privileged material may be given expressly or impliedly by conduct of the person holding the privilege.

The leading case in England is Three Rivers District Council and others v Governor and Company of the Bank of England (2004), a decision of the House of Lords.  Clients of lawyers are able to communicate in complete confidence that communications and documentation passing between them in the course of preparing for and giving legal advice will not be disclosed other than with the consent of the client.

Legal Advice Protection

Legal advice privilege protects the communication between a lawyer and their client, made for the purpose of seeking or giving legal advice. The scope of “communication” is wide. It applies to all information that is passed with the aim to keep the other party informed so advice may be sought and given as required. Legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.

Litigation Protection

Litigation privilege protects all documents coming into existence for the purposes of litigation or pending litigation, and comes into existence with respect to confidential communication between lawyers, their clients and/or third parties, which come into existence for the dominant purpose of being used in connection with actual or pending litigation. This privilege entitles a litigant to withhold evidence from production during the course of legal proceedings.

Requirements of Professional Privilege

1. Confidentiality: To be regarded as privileged, communications must be confidential. If privileged material has lost its confidentiality there will be no claim for privilege. Instead it will be treated as in the public domain. However, just because communication is confidential does not automatically mean it is privileged.  Furthermore, if the original material was not bought into existence for the either privileged purpose mentioned, it does not become privileged by merely giving it to a lawyer.
2. Who is the lawyer?:  The privilege attaches to communications with qualified members of the legal sector. It does not apply to other professionals who may advise on law, for example accountants on tax law or auditors. What matters is the exercise of the professional skill of a lawyer or solicitor.  Legal professional privilege applies to advice sought in a professional capacity rather than business advice, so the context of the advice is central to the existence of protections afforded by the privilege.  Acting in an executive capacity is not covered by the privilege either which may apply to some aspects within the role of an in-house lawyer.
3. Ownership: The privilege is owed by the client. The client may be a witness, successor in title, principal or agent.  As a matter of practice it usually claimed by the lawyer to protect relevant communications. The lawyer is under a professional obligation to assert the privilege until it is lost or waived by the client.  A lawyer cannot invoke the privilege or use it for his own benefit if the client waives it. No adverse inference can be drawn from a claim for privilege, as this would be inconsistent with its existence as a fundamental right.

Preserving Privilege

1. Duration

   If the circumstances of creation of a document attract privilege, the party to whom the privilege belongs may continue to claim privilege over it.  Such privilege may be an answer to any subsequent request for the document, whether in proceedings or otherwise.  The principle “once privileged always privileged” applies. But, the privilege can be lost or waived, usually by disclosing the legal advice to a third person. Once lost or waived the privilege cannot be retrieved.

2. Loss

   If a document is circulated widely, or made publicly available privilege will be lost. Under such circumstances the requirement of confidentiality will not stand.  If a document is shown to a third party does not necessarily mean a claim to privilege is lost. The privilege is capable of attaching itself to third party communication of common interest, where an implied or express obligation of confidence is extended, and therefore may be possible to maintain.

   Privilege may be lost (or more likely never vest in the first place) if communications were and/or documents were created a criminal or fraudulent purpose.

3. Waiver

   A client may choose to waive the privilege whether or not if the material is helpful to their case. This may result in the need to disclose other documents or whole documents. This is to prevent an unfair selection of parts of documents with a biased result.
   To preserve legal professional privilege, litigants or potential participants in litigation would be well advised to:

   • mark correspondence with ‘Privileged’ or “Produced for the purpose of receiving Legal Advice” so that the purpose of the document is made clear;
   • limiting distribution of the content of legal advice to that which is necessary, to individuals within the organisation and considering the number of persons to whom the advice should be communicated and the extent of disclosure required;
   • minimising internal notes and internal memoranda of legal advice;
   • if reports are required to be produced, the persons briefed to prepare the report should be engaged by lawyers to maintain privilege.