Information & Inspection Powers: conditions and safeguards: restrictions: legal professional privilege: testing legal advice privilege
When testing a claim to legal advice privilege you should be aware of the following.
For a claim to legal professional privilege to succeed
- the lawyer must be engaged professionally and
- the context of the engagement must be to give legal advice in a situation where a lawyer would typically advise. This includes ‘in house’ lawyers employed within an organisation.
Materials that are covered by legal professional privilege include:
- all communications relating directly or indirectly to the advice
- advice on what the client should and should not do
but the following are examples of materials that are not covered by legal professional privilege:
- advisers’ invoices, engagement letters, contracts (watch tax contingent fees)
- disbursements (expenses billed to client)
- marketing material
- communications with client with no legal (including tax) advice
- timetables, flowcharts or other records of what took place or was planned
- cast list, check list, transaction, financial and document control records
- notes or records of decisions taken where advice was not discussed (for example, board or trustee decisions, notices, resolutions and so on - advice parts can be redacted)
- calculations, costings, economic analysis, structures and plan diagrams
- accounting opinion or advice and financial records
- third party communications with, for example, banks or regulators
- records of fact.
If the lawyer is engaged by more than one client with similar interests (for example, a company and its directors) there may be joint legal privilege.
Advice to one client keeps legal advice privilege when shared with those with a common interest in the advice so long as they hold that common interest.
Advice circulated within an organisation keeps legal professional privilege if shared among those with a legitimate interest in it. Their discussions of the advice and what to do in consequence will normally remain privileged.
Legal professional privilege only covers lawyer/client communications, not those between the solicitors and other parties to the transactions.
Once legal professional privilege has been waived it cannot normally be reclaimed. A person can partially waive privilege or waive it for a defined purpose but cannot waive partially to mislead or to give an unfair impression.
Broadcasting or distributing advice widely, whether or not for profit, may lose legal professional privilege.
Redacting non legal professional privilege information is not normally acceptable. A practical answer to the provision of documents is to allow redaction of the part of the document that includes only the ‘advice or what the client should do/not do in a legal context’.
If the person provides legal professional privilege material and this may have been an error then, unless the person confirms that the material was sent intentionally, you must return the documents without copying or examining them.