Legal (Advice) Privilege Never Dies
Posted on 17th October 2019
What is Legal Advice Privilege?
The principle of legal advice privilege between a solicitor and their client is endorsed in both statute and common law and is a fundamental basis to ensure open and candid instructions from the client and likewise advice from the solicitor.
Solicitors are obliged under Chapter 4 of the Solicitors Regulations Code of Conduct handbook to uphold the duty of client confidentiality, which applies even after the retainer has terminated.
Guidance is also provided by the Law Society in their Practice Note.
In addition, the Civil Procedure Rules, 31.3 (b) permits the withholding of documents which are considered privileged.
What does Legal Advice Privilege Cover?
It covers confidential communications between a solicitor and their client (whether litigation is contemplated/pending or not, and is distinct from Legal Litigation Privilege).
This means that such communications cannot be disclosed to third party for production or inspection.
The question of what communications and what sort advice is protected has been the subject of extensive litigation.
It is not confined to just telling the client what the law is but extends to advising the client what the client should prudentially and sensibly do in the “relevant legal context” as confirmed in the leading case of Three Rivers DC v Governor and Company of the Bank of England (No.6) (2004).
It can cover not just the legal advice itself but the evidence that legal advice was actually given.
Who does Legal Advice Privilege Belong To?
The client, as opposed to the solicitor. It can therefore only be waived by the client.
The case of Lee Victor Addlesee & Ors v Dentons Europe LLP (2019)
This case re-inforced the principle that legal advice privilege once established will remain in existence unless and until it has been waived by the client.
Investors had initiated a claim against a Cypriot company which had dissolved, for fraud and/or negligence of an investment scheme. They then applied for disclosure of communications between the company and their lawyers.
It was accepted that the communication would otherwise be protected by legal advice privilege but the investors argued that this ceased when the company dissolved as there was no entity in existence entitled to assert the protection.
The Court of Appeal disagreed and held that legal advice privilege was absolute and survived even once a client died (or in this case dissolved). The real question is not whether there was someone to assert privilege but whether there was someone to waive privilege and if so had they done so. It did not matter that in the current situation that there was never going to be someone able to waive privilege.
What does the Future Hold for Legal Advice Privilege?
If Brexit occurs, then UK lawyers will no longer be afforded protection of legal advice privilege within the EU as they will be considered third-country lawyers before EU bodies and courts.
It is not clear what agreement will be reached beyond the transition period to combat this issue.