A Practical Guide to Privilege

A Practical Guide to Privilege

For in-house lawyers, privilege can be a minefield and, if not considered properly, can have far reaching ramifications.

Privilege can only be claimed if the communication in question is confidential. Privilege can be lost inadvertently or can be waived by the holder of the privilege and, once lost or waived, it cannot be reclaimed. Privilege also only attaches to certain types of communications.

Here are some practical tips for maximising the chances of creating and maintaining communications that benefit from privilege under English law, whilst working as an in-house lawyer:

  1. Ensure your practising certificate is up to date
    Providing you are acting in your capacity as a lawyer (and not in an executive or compliance capacity) and you hold a current practising certificate, as an in-house lawyer you will be in the same position as lawyers in private practice for the purposes of claiming privilege.
  2. Keep legal advice separate from other advice/communications
    Any advice you give will only be privileged to the extent that you are giving legal advice. Commercial / business advice or advice relating to administration or management affairs will not be privileged. Consequently, in order to avoid the risk of inadvertent waiver of privilege, it is sensible to make sure, as much as possible, that you keep communications containing legal advice separate from other communications.
  3. Identify the “client”, but not exhaustively
    For a corporation, only those who are “tasked with seeking and receiving legal advice on behalf of the company” are deemed to be the “client”. You should, therefore, identify the key individuals or core team within your company who will be in charge of giving instructions and receiving legal advice and notify your external lawyers and other employees, so that they are aware. Be careful, however, of setting out an exhaustive definition of the “client” as this may not always be workable in practice, depending on the nature of your organisation. In some circumstances, it may be preferable to list the primary individuals responsible for instructing the legal team and obtaining legal advice, but leave it open for instructions to be taken from, and advice given to, other appropriate individuals as the matter progresses.
  4. Restrict the circulation of legal advice internally
    As far as possible, you should limit the dissemination of legal advice and other communications with lawyers internally on a “need-to-know” basis (i.e. it should only be sent to those individuals who need to know as part of the instruction/decision-making process). If privileged documents need to be shared beyond the core “client” group, do so on the express terms that the documents are to remain confidential and should not be made available to anyone outside the intended group of recipients. If possible, keep a record of who you have sent privileged material to and when. Review emails before forwarding them on, as if they contain privileged content which you do not wish to share with the recipient, you should send a separate email.
  5. Be cautious with third parties
    As with internal communications, only share privileged documents with third parties on a “need to know” basis and consider asking them to enter into a confidentiality agreement before you circulate the documents, which makes clear that i) provision of the documents does not constitute a waiver of privilege and ii) the documents are being provided on strictly confidential terms and should not be disclosed to anyone else. Where there is no litigation (or reasonably contemplated litigation), communications with third parties will not generally be protected by privilege. In the context of litigation privilege, it will only apply to third party communications which are for the purpose of obtaining advice or information about the litigation. Consequently, any correspondence with third parties should make this purpose clear.
  6. Mark communications as “Confidential and Privileged”
    Although the marking of a communication with this label is not determinative, the recipient will be put on notice that the communication is intended to be confidential and privileged and should also help prevent accidental disclosure. It may also bolster an argument that the communication is privileged.
  7. Internal investigations should be lawyer-led
    If your organisation intends to commence internal investigations, ensure that these investigations are lawyer-led, with interviews and reports prepared by lawyers.
  8. If litigation is brewing…
    Record the moment when the litigation is reasonably in contemplation (i.e. it is a real likelihood rather than a mere possibility) and your reasons why you consider this to be the case. This may assist you with arguing that litigation privilege should apply from that date. You should also take immediate steps to preserve all relevant documents to the dispute.
  9. Copying in a lawyer will not create privilege
    Merely copying in a lawyer to a communication between two non-lawyers will not create privilege. You should, therefore, ensure that your non-lawyer employees are aware of this and that where they are seeking legal advice from you (or another in-house or external lawyer), they do so in a direct communication to you/the lawyer which clearly states that they are asking for advice, ideally using the heading “Confidential and Privileged”.
  10. What is the “dominant purpose” of the communication?
    For the purposes of both legal advice privilege and litigation privilege, consider what the “dominant purpose” of the communication is. Is the dominant purpose to settle the instructions to the lawyers, or to seek commercial views from the non-lawyer addressees? If the latter, then legal advice privilege will not apply. In the context of litigation privilege, if documents are created for more than one purpose but litigation is the primary purpose (e.g. dealing with PR issues as well as the litigation), you should ensure that the documents are drafted to make it clear that the document was prepared for the dominant purpose of obtaining advice or evidence in relation to the conduct of the litigation (or contemplated litigation).
  11. Educate non-lawyers/commercial teams
    Providing training to non-lawyer employees on privilege and its importance and implications may be beneficial, so that they are alive to the potential issues when sharing information, both internally and externally. You should also highlight the importance of involving lawyers at an early stage.
  12. Rules of privilege may differ in other jurisdictions
    If you are dealing in other jurisdictions, the rules of privilege may differ to English law and you may, therefore, need to seek local advice.

If you would like more information on Privilege and how it might impact your business please contact one of our Commercial Litigation team.

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