|
It is a fundamental – and long established – principle of English law that clients should be able to communicate freely with their legal advisors, without fear that their communications will later be disclosed to their prejudice. Certain documents and discussions between professional legal advisors and their clients are therefore afforded a special level of protection from disclosure that is not generally available to communications with other professional advisers.
This special protection is known as “legal advice privilege”, and it covers confidential communications between a client and his professional legal advisor made for the purposes of giving, or receiving, legal advice irrespective of whether litigation is in contemplation or progress at the time.
Once established, legal advice privilege entitles the party asserting it to withhold confidential evidence (whether oral or written) from production to, or inspection by, a third party, court or tribunal, unless there is a clear statutory provision to the contrary (although in the course of litigation, the existence of privileged documents must be disclosed, even if inspection of them can be, and is, withheld). This protection applies even if the evidence is highly relevant to the issues in dispute, and it is not generally open to a court or tribunal to draw adverse inferences if privilege is claimed.
This note focuses on some of the pitfalls to avoid when seeking to rely on legal advice privilege, in particular, the necessary status of the advisors, and those seeking the advice, in order for the privilege to apply.
Trust me, I’m a lawyer!
In this context, “legal advice” is not confined to receiving advice about legal rights and obligations; it also includes practical, strategic advice as to what should prudently and sensibly be done in the relevant legal context, or advice as to the presentation of the particular case. However, whilst the definition of legal advice in this context is very broad, such advice will only be protected by legal advice privilege if it emanates from certain sources.
Nowadays, there are a multitude of sources from which employers and employees alike can seek “legal advice”, in addition to external lawyers. A simple Internet search will, for example, identify any number of enterprises offering employment law advice, ranging from the preparation of contracts of employment and employee handbooks, to advice about redundancy exercises and actual representation at Employment Tribunals. Many larger employers will also have comprehensive internal human resources departments to whom they turn for employment law advice.
Individuals and companies may be attracted by the competitive rates that some of these enterprises (which are not typically staffed by qualified lawyers) offer, and may have developed practices of initially seeking assistance from such sources, only to instruct lawyers if the matter becomes litigious. However, any initial costs-savings may prove to be false economy as legal advice privilege can generally only be invoked in respect of communications with “legally qualified professionals”. Any information provided to, or advice received from non-legally qualified advisors will not usually be protected by legal advice privilege.
“Legally qualified professionals” will include solicitors or barristers in independent practice, foreign lawyers, in-house lawyers (provided the communication is made in relation to legal advice and not, for example, general business advice or administrative matters) and non-legally qualified personnel (for example, trainee solicitors and paralegals) acting under the direction/supervision of solicitors or barristers.
In the employment context, clients are often looking for a quick overview of their rights/obligations in a particular situation, or perhaps for an indication of “best practice” in their particular industry. It is all too easy to enter into full and frank discussions with a non-legally qualified advisor either without ever having asked the question whether such discussions will later be covered by legal advice privilege, or else wrongly assuming that they will be. If the matter later becomes litigious, it may come as a very unpleasant surprise to discover that the cloak of privilege does not, in fact, protect those candid discussions. It is also unlikely that such discussions would qualify for “litigation privilege” (a separate form of privilege, an analysis of which is beyond the scope of this note) unless proceedings were existing, pending, or reasonably in the contemplation of the parties at the time of the relevant communication.
Just send it to the lawyer, then it’s privileged – right?
Legal advice privilege is only available to the “client”. This will not usually be an issue where an individual instructs a lawyer. Where a corporate or legal entity seeks legal advice, that entity is the “client” for the privileged purposes. However, as a legal entity can only act through natural persons, the Courts have held that only communications with officers or employees who have been expressly or impliedly authorised by the corporate entity to seek and receive legal advice are to be treated as communications with the “client” and therefore privileged.
In-house legal counsel would be an obvious example of an individual who is authorised to seek and receive the advice of external legal advisors, and, therefore, communications between that individual and that legal advisor would be cloaked by privilege. However, corporate clients should not assume that all communications between their personnel and the company’s lawyer will be protected. Even those communications that are eventually forwarded to the company’s lawyer may not attract legal advice privilege unless the employee who made the communication is the “client” as defined for the purposes of the retainer with the lawyer. One practical solution would be for corporate clients to consider nominating a defined group of employees/officers who will be the “client” when retaining a lawyer on a particular matter.
An absolute rule?
There is one recognised exception to the rule that only communications with legally qualified professionals are privileged: legal advice privilege will apply even if the advisor is not legally qualified or does not hold a current practicing certificate provided that, at the time of the communication in respect of which privilege is being sought, the client genuinely and reasonably believes that the advisor is legally qualified and/or mistakenly believes the lawyer has consented to act for him.
This exception is based on a desire to uphold the reasonable expectations of persons seeking legal advice and it focuses on the knowledge and understanding of the client seeking the legal advice, rather than the status of the legal advisor. However, this exception is based on 19th century case law and, whilst currently good law, is clearly vulnerable to a modern interpretation.
Indeed, there is more recent case law that strongly indicates that the courts and tribunals will be very reluctant to extend the scope of legal advice privilege beyond legally qualified professionals. Specifically, the Employment Appeal Tribunal has held that it is unnecessary and undesirable to extend legal advice privilege to communications with personnel consultants (without legal qualifications) giving employment law advice before litigation was contemplated.
Kiersten Lucas
299
Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
<< back to articles & bulletins
|