What is Legal Privilege?

What is Legal Professional Privilege?

Legal Professional Privilege is the rule that entitles a company to withhold certain confidential documents from inspection, or for use in evidence, even if they are relevant to a legal case. The impact of this is often misunderstood in businesses, with potentially very serious consequences.

In essence, there are two forms of legal professional privilege:

a. legal advice privilege, and;

b. litigation privilege.

What is Legal Advice Privilege?

Confidential information contained in communications between a lawyer and their client can benefit from the protection of legal advice privilege, but only where that confidential communication is for the dominant purpose of seeking, giving or receiving legal advice.

Further, legal advice privilege will only attach to communications between the organisation’s lawyers  and the “client” (being those individuals who are authorised to seek and receive legal advice on behalf of the organisation). The definition of “client” does not extend to everyone within the organisation, or even a unit or department seeking legal advice.

For example, an organisation that employs an in-house solicitor is entitled to assert a claim of legal advice privilege over relevant, confidential communications between the in-house solicitor and certain other individuals within the organisation, but only where the in-house solicitor is acting in their capacity as legal advisor. In-house lawyers must however take particular care to ensure that they distinguish clearly between advice which is legal and advice which is commercial in nature, since the latter will not attract legal privilege.

What is Litigation Privilege?

Litigation Privilege allows for the full and frank communication between parties engaged in or preparing for litigation. It operates by protecting confidential communications between a lawyer and client, or  between one of them and a third party, the dominant purpose of which is for use in the actual or contemplated litigation.

Where litigation privilege is claimed over communications made prior to the commencement of litigation or other sufficiently adversarial proceedings then there must have been at least a reasonable likelihood of that litigation or those other proceedings taking place and a mere possibility they may take place will not be sufficient.

Some Key Considerations

Confidentiality  – A document must remain confidential to benefit from legal professional privilege. Very often it is the extent of the circulation of a document that ultimately determines whether or not it is sufficiently confidential.

Waiver of privilege – Legal professional privilege can be ‘lost’ or waived expressly or implied by the ‘owner’ of the privilege, namely the business. This usually occurs when a document which is the subject of the claim contains information which may be helpful if introduced as evidence by the business. It is very difficult to reassert privilege once it has been waived.

Duration of privilege – There is an important durational difference between the two main types of privilege. Litigation privilege may only apply to a document concerning the litigation to which it relates. This means that a document subject to litigation privilege in one case may not be privileged at a later date or in another case. This is in contrast to legal advice privilege which can be indefinite.

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The material contained in this post is for general information purposes only and does not constitute legal advice. Specific legal advice should be sought on any particular matter. No liability whatsoever is accepted by PF Solicitors for any action taken in reliance on the information in this post.