LEGAL PROFESSIONAL PRIVILEGE 2017/18: WHAT CORPORATE COUNSEL NEED TO KNOW

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n the UK, ‘legal professional privilege’ covers both legal advice privilege and litigation privilege. Legal advice privilege protects communications passing between a qualified lawyer and his or her client if the document has been created for the purpose of giving or receiving legal advice. Litigation privilege protects documents created for the dominant purpose of litigation which is reasonably contemplated or existing.

Privilege is a hugely valuable protection. It entitles a client to withhold documents (including electronic communications) from a court or third party, without adverse inferences being drawn. There are important public policy justifications underpinning privilege, such as the need for clients to be able to candidly disclose matters to their lawyers; to enable lawyers to obtain, investigate, record and freely communicate information to their clients; and, in the context of regulatory investigations, so that regulators can deal with experienced lawyers, which in turn will advance public interest.

However, recent cases highlight the relatively narrow scope of privilege and provide important lessons for corporate counsel and commercial litigators.

Jan-Mar 2018 issue

Walker Morris LLP

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