Legal professional privilege has long been recognised by the common law in England and Wales. It is an absolute right whereby a client is entitled to refuse confidential information being disclosed to third parties. Those third parties may include state institutions such as: courts, tribunals and regulatory bodies. The underlying purpose is to enable individuals to obtain access to the justice system by being able to communicate freely with legal advisers without incriminating themselves.
There are two main types of legal professional privilege; legal advice privilege and litigation privilege.
Legal Advice Privilege
Legal advice privilege is designed to protect communications between a lawyer and their client but not communications with external third parties.
Information is only protected if the communication in question is with a professional legal adviser for the sole or dominant purpose of obtaining legal advice. Generally, the privilege afforded extends to advice from in house salaried legal advisers to legal advisers who are employed by the government, commercial companies and also foreign lawyers but not to advisers who are not legally qualified such as accountants. Limited exceptions to these general rules do exist.
Litigation privilege is designed to protect confidential communications between a lawyer and their client or third party or between a client and a third party in circumstances involving litigation. This protection is only valid if the communications have been created for the sole or main purpose of receiving legal advice, information or evidence in preparation for litigation or where there is a reasonable prospect for litigation taking place.
It is a requirement that the litigation must be adversarial rather than just inquisitorial or investigative. An example of inquisitorial or investigative proceedings would be that of family law care proceedings. Litigation privilege does not cover material or documents that were obtained for litigation proceedings if they came into existence before there was a reasonable prospect or contemplation of litigation.
To be regarded as privileged the communications between the parties must be confidential. If the client instructs his solicitor to repeat communications to a third party this will be not be privileged because the communications are no longer confidential.
Waiver of Legal Professional Privilege
With both legal advice privilege and litigation privilege it is possible for the client to waive his or her privilege. However, only the client can do this and not a lawyer or a third party.
It is important that you understand the extent and limitations of legal professional privilege when instructing professional advisers, particularly if the alternatives include non-legal advisers such as accountants. For more information please contact us on 0207 611 4848.