Legal professional privilege

Legal professional privilege

Contents

Introduction

This section is concerned with a particular issue faced by independent legal professionals (ILP).

An ILP is professionally and legally obliged to keep the affairs of clients confidential and to ensure that his staff do likewise. The obligations extend to all matters revealed to an ILP, from whatever source, by a client, or someone acting on the client's behalf. In exceptional circumstances this general obligation of confidence may be overridden. However, certain communications can never be disclosed unless statute permits this either expressly or by necessary implication. Such communications are those protected by legal professional privilege (LPP).

Legal professional privilege

LPP is a privilege against disclosure; ensuring clients know that certain documents and information provided to lawyers cannot be disclosed at all. It recognises the client's fundamental human right to be candid with his legal adviser, without fear of later disclosure to his prejudice. It is an absolute right and cannot be overridden by any other interest.

LPP does not extend to everything lawyers have a duty to keep confidential. LPP protects only those confidential communications falling under either of the two heads of privilege - advice privilege or litigation privilege.

For the purposes of LPP, a lawyer includes solicitors and their employees, barristers and in-house lawyers. It does not include accountants.

Advice privilege

Communications between a lawyer, acting in his capacity as a lawyer, and a client, are privileged if they are both:

  • Confidential
  • For the purpose of seeking legal advice from a lawyer or providing it to a client

Communications are not privileged merely because a client is speaking or writing to a lawyer. The protection applies only to those communications which directly seek or provide advice or which are given in a legal context, that involve the lawyer using his legal skills and which are directly related to the performance of the lawyer's professional duties.

According to decided cases:

  • Communications that are subject to advice privilege include:
    • A lawyer's bill of costs and statement of account
    • Information imparted by prospective clients in advance of a retainer will attract LPP if the communications were made for the purpose of indicating the advice required
  • Communications that are not subject to advice privilege include:
    • Notes of open court proceedings are not privileged, as the content of the communication is not confidential
    • Conversations, correspondence or meetings with opposing lawyers are not privileged, as the content of the communication is not confidential
    • A client account ledger maintained in relation to the client's money
    • An appointments diary or time record on an attendance note, time sheet or fee record relating to a client
    • Conveyancing documents are not communications so are not subject to advice privilege

All communications between a lawyer and his client relating to a transaction in which the lawyer has been instructed for the purpose of obtaining legal advice are covered by advice privilege, notwithstanding that they do not contain advice on matters of law and construction, provided that they are directly related to the performance by the lawyer of his professional duty as legal adviser of his client.

This will mean that where a lawyer is providing legal advice in a transactional matter (such as a conveyance) the advice privilege will cover all communications with, instructions from, and advice given to the client, including any working papers and drafts prepared, as long as they are directly related to the performance of the lawyer's professional duties as a legal adviser.

Litigation privilege

This privilege, which is wider than advice privilege, protects confidential communications made after litigation has started, or is reasonably in prospect, between either:

  • A lawyer and a client
  • A lawyer and an agent, whether or not that agent is a lawyer
  • A lawyer and a third party

These communications must be for the sole or dominant purpose of litigation, either:

  • For seeking or giving advice in relation to it
  • For obtaining evidence to be used in it
  • For obtaining information leading to obtaining such evidence

An original document not brought into existence for these privileged purposes and so not already privileged, does not become privileged merely by being given to a lawyer for advice or other privileged purpose.

It is not a breach of LPP for a lawyer to discuss a matter with his MLRO for the purposes of receiving advice on whether to make a disclosure.

Crime/fraud exception

LPP protects advice a lawyer gives to a client on avoiding committing a crime or warning them that proposed actions could attract prosecution. LPP does not extend to documents which themselves form part of a criminal or fraudulent act, or communications which take place in order to obtain advice with the intention of carrying out an offence. It is irrelevant whether or not the lawyer is aware that he is being used for that purpose.

It is not just the client's intention which is relevant for the purpose of ascertaining whether information was communicated for the furtherance of a criminal purpose. It is also sufficient that a third party intends the lawyer/client communication to be made with that purpose (e.g. where the innocent client is being used by a third party).

If a lawyer knows the transaction he is working on is a relevant offence, he risks committing an offence himself. In these circumstances, communications relating to such a transaction are not privileged and should be disclosed.

If a lawyer merely suspects a transaction might constitute a relevant offence, the position is more complex. If the suspicions are correct, communications with the client are not privileged. If the suspicions are unfounded, the communications should remain privileged and are therefore non-disclosable.

If a lawyer suspects he is unwittingly being involved by his client in a fraud, the courts require prima facie evidence before LPP can be displaced. The sufficiency of that evidence depends on the circumstances: it is easier to infer a prima facie case where there is substantial material available to support an inference of fraud. While a lawyer may decide himself if prima facie evidence exists, he may also ask the court for directions.

It is likely that if a lawyer forms a genuine, but mistaken, belief that LPP applies, the lawyer will be able to rely on the reasonable excuse defence (The secondary money laundering offences) (see also Terrorist financing offences).