Privilege

Legal Professional is a complex area relevant to all lawyers who provide legal advice, not just litigators.

The following sets out the key practical considerations in brief. It is so selective and high level that it serves only as a guide to dealing with some difficult questions, but by being so focussed it can help cut through the complexity to give the client an advantage and to keep us safe.

What is privilege?.

Legal professional privilege (LPP) is a fundamental legal right. LPP protects oral or written communications from production to a third party or to the court. LLP belongs to the client, not to the lawyer. A lawyer has a duty to protect a client's privilege and cannot waive it without the client's express authority.

If privilege is lost you may find your legal advice is used in evidence against you.

There are two main types of privilege: Legal Advice and Litigation .

Requirements for legal advice privilege (LAP):

• Confidential
• Applies to documents and/or communications related to contentious and non-contentious matters
• Applies to communications between a €˜lawyer' (acting as a lawyer) and €˜client' (or client group, see below, who is the client) for the purpose of €˜giving or receiving legal advice'.
• does not apply to advice given by non-lawyers except for juniors where appropriate supervision by qualified lawyers (solicitors, barristers, RFLs) is in operation.
• Only extends to communications between a lawyer and client, not third parties.

Requirements for litigation privilege (LP):

• Confidential
• Communications and/or documents created for the dominant purpose of an existing, pending or reasonably contemplated litigation.
• Litigation must be adversarial not investigative
• Wider than LAP. Covers communications between a lawyer and client or between either of them and a third party (subject to the three points above being met).

How do you lose privilege?

If something is no longer confidential, then it is no longer privileged. does not apply to cloak any matter that is part of the commission of a crime/fraud (iniquity exception).

Who is the client?

The individual instructing you. If the client is an entity, then those in the entity whose role it is to instruct you (the "client group"). 'The client' for the purposes of privilege consists only of those employees authorised to seek and receive legal advice.

How to preserve privilege:

Keep matters confidential, communicate only with the client, keep any client group small, consider not sending by email, but using NetDocs to restrict access to the relevant matters, don't send to all within a client group but only those who need to know (i.e. not all need to know everything), if sending outside the client/client group you should consider: a) watermarking the document €˜privileged and confidential', b) telling the recipient not to send on without your express permission, c) saying in the cover email that it is privileged and confidential.

What is without prejudice privilege?

The without prejudice privilege governs the admissibility of evidence and operates to exclude evidence of all negotiations (oral or written) genuinely aimed at settlement of a dispute between the parties to those negotiations from being given in evidence. You should ensure that you label €˜without prejudice' correspondence appropriately.