When Private Becomes Privileged...

This article first appeared in PI Telegraph, 4 Dec 2012

Introduction

Privilege is the legal principle that allows people to seek legal advice with the knowledge that communications with their lawyers will be exempt from disclosure in legal proceedings. The protection of privilege enables lawyers and their clients to adequately prepare a case for Court. Where an investigator instructed on a case comes across a privileged communication which belongs to the other side, that document should not be disclosed to the instructing solicitors, who would not be entitled to see it. If an investigator is not certain that a document is privileged (S)he should flag the issue with their instructing solicitor and seek legal independent advice.

Unfortunately, the extent and application of privilege can be difficult to determine. Assessing whether a document is privileged is a regular challenge for investigators, whose enquiries will often necessitate a review of someone's communications, occasionally including communications with lawyers. This article seeks to provide some useful guidance for investigators about when lawyer / client correspondence is likely to be privileged. If a document may be privileged the investigator should highlight this fact to any instructing solicitors.

A Brief Explanation of Legal Professional Privilege

Types of Privilege

There are two types of legal professional privilege: legal advice privilege and litigation privilege.

Legal advice privilege attaches to confidential communications between a client and a lawyer, where that correspondence was written for the purpose of giving or obtaining legal advice. In this context, legal advice means that it relates to the client's legal rights and obligations, and extends to strategic advice in that context.

Litigation privilege, applies to confidential documents that were created for the sole or dominant purpose of actual or pending litigation which is reasonably in prospect. Unlike legal advice privilege, a document protected by litigation privilege does not need to be between a client and a lawyer; it can also extend to communications with employees and third parties.

Confidentiality

It should be emphasized that privilege will only apply to documents which are confidential. As such, if a document has entered the public domain, for example by being posted on a website, it will no longer be privileged. By contrast, privilege is likely to subsist in a document which is disclosed to a limited number of people who were expressly instructed not to divulge its contents.

Legal Advisor

A "lawyer" for the purposes of ascertaining whether privilege attaches to a document is essentially anyone in the legal profession, including solicitors, barristers, in-house lawyers and foreign lawyers. This broad interpretation reflects the underlying purpose of privilege - allowing uninhibited access to legal advice.

The Fraud Exception

It is worth noting that a court can order that a document is not privileged if it was created for the purposes of furthering a fraud or crime.

Whilst the above principles are fairly easy to explain, their application can be difficult. As a result each communication needs to be assessed on its own merits. With that in mind, there are a number of useful questions which should be taken into account when considering whether a document is privileged. 

Useful Questions to Ask

1. Is the document confidential? If a document is readily available to the world at large, privilege is unlikely to be an issue. Similarly, any communication between two parties in a dispute is unlikely to be privileged, unless the information was disclosed by one of the parties on a without prejudice basis. In such circumstances, the communication would remain privileged even if the party who received it wrongfully disseminated it to a wider group of people.

NB. Where a privileged document is disclosed by its custodian to a third party who has a common interest in the subject matter of the communication, it will remain privileged.   

2. Were legal proceedings a reasonable prospect when the communication was created? If so, it must be assessed whether the document was produced with the dominant purpose of conducting those proceedings or giving or receiving legal advice in relation to them. In these circumstances, the document is likely to be privileged.

3. Is the document a confidential communication between a lawyer and his or her client?  If it is, the document will be privileged so long as it records the giving or receiving of legal advice or discusses what course of action the client should take in a legal context. However, it is worth noting that correspondence which does not meet this description may nevertheless still be privileged if it is for the purposes of keeping either the lawyer or the client informed about the progress of matters so that legal advice can be dispensed. 

4. Was the document created for the purpose of furthering a fraud? If so, it is unlikely to be privileged.

Alexandra Underwood, partner in Fieldfisher's Dispute Resolution Group.