Privilege is an essential tool for ensuring that sensitive or confidential information is kept private. During the course of civil litigation (or investigations conducted by regulators, for example the FCA) a party may be required to disclose sensitive and confidential documents. Only documents relevant to the specific case are subject to a disclosure obligation, and certain of those may be legitimately withheld on the basis that they are privileged.
This note focuses on two specific heads of privilege: (i) legal advice privilege and (ii) litigation privilege , and is intended to highlight the ways in which parties may seek to ensure that sensitive or confidential documents are protected from disclosure.
The law
Privilege is complex. It is often wrongly assumed that all communications between lawyer and client (and thus in-house lawyers and their non-lawyer colleagues) are confidential and privileged. For example, in European Commission investigations, in-house lawyers cannot claim the protection of legal professional privilege at all.
There are two main types of legal professional privilege to consider:
- legal advice privilege (attaching to confidential communications between lawyer and client where the communications are for the purpose of giving and receiving legal advice); and
- litigation privilege (attaching to confidential communications between a lawyer, client and a third party where such communications are brought into being for the purposes of litigation). The involvement of a lawyer is a prerequisite of legal advice and litigation privilege. However, not all communications between lawyer and 'client' are automatically privileged – only those which fall within one of the above categories.
Who should be involved with the communication?
- Consider whether meetings require in-house or external legal attendance. Where meetings are held without legal involvement, even where discussions were a preamble to taking advice, resulting documentation may not be privileged.
- Communications between in-house or external lawyers and employees in the business should be limited to those with a genuine interest in receiving and making such communications and are actually seeking or receiving the advice upon which decisions may be made.
- Ensure data-gathering exercises are undertaken by those who fall into the category above – and that any advice given is not circulated within the business on a "FYI" basis.
- Avoid passing privileged documents to subsidiary companies unless they have an interest in and are seeking legal advice.
- Repetition or interpretation of legal advice in writing by employees should be avoided because although the advice may remain privileged, any comment on it may not.
Practical Tips
- Think before creating any document. Is it better to discuss in person or by telephone?
- If a document appears to be capable of benefiting from the privilege exception, mark it prominently "Legally privileged and confidential ". (Note that this will not guarantee that the document is privileged.)
- If only part of the communication is privileged, ensure this section is contained within a separate document. Eg if a section of board minutes contains privileged information, minute such part separately and refer to it in the main minutes as a privileged discussion recorded separately.
- Keep separate files dealing with legal and administrative matters. Similarly, consider preparing separate communications in respect of legal and non-legal issues, thus avoiding the risk of inadvertently waiving privilege over the legal advice.
- Where litigation is threatened or contemplated, co-ordinate all reports and investigations into the issues in question. All requests for information, statements or opinions regarding the problem should be routed through the in-house lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
