Privilege: Do you really know what Documents you can protect?

Legal Advice Privilege

Legal advice privilege protects from disclosure confidential communications between a solicitor and a client made for the dominant purpose of seeking or obtaining legal advice whether the matter is contentious or non contentious.

The 2004 High Court decision in Three Rivers District Council and others v Governor and Company of the Bank of England (No. 6) [2004] UKHL 48 has clarified the position in respect of legal advice privilege.

• Legal advice privilege will apply to presentational advice given by in-house lawyers, where the lawyers are being consulted because of their legal expertise in relation to a wide range of non-adversarial matters, such as regulatory enquiries, public inquiries and inquiries by other professional bodies.
• Communications between a company’s employees and its legal advisers (internal or external) may not be privileged unless they are between a lawyer and a “client” who will need to be defined.
• Companies will need to determine which person or group of people are to be regarded as the “client” internally and externally and document that. It is likely that this will be the person or people who actually communicate with the internal and external lawyers. This may need to change on a case-by-case basis depending on the nature of the advice sought.
• An in-house lawyer will need to clearly understand and establish who his “client” is.
• With external legal advice, companies will need to decide who the “client” is. This will usually be the in-house lawyer, or the person providing instructions to the solicitor. This can be more than one person.
• Companies should not assume that documents will be protected if they are communications between employees. Only those communications between the “client” and the internal or external legal advisers will be privileged. For example if the managing director asks a solicitor for advice and then asked an employee who has no direct contact with the solicitor to prepare a memo on the particular problem, that memo may not be privileged.
• To preserve legal advice privilege, investigations should be conducted directly by in-house or external lawyers. Communications within the company should be kept to a minimum. Legal advice should be confidential and only disseminated within the company for the purpose of informing people of that advice.

Litigation Privilege

The Three Rivers case concerned legal advice privilege. Litigation privilege extends to protect a wider range of communications. It protects from disclosure those communications that are brought into existence with the dominant purpose of being used in actual, or contemplated litigation. This covers adversarial proceedings but not inquisitorial proceedings. Litigation privilege also attaches to communications with third parties, for example witness and experts.

Without Prejudice Communications

Admissions made in genuine settlement negotiations cannot be relied upon in legal proceedings to the detriment of the party making the admission. Correspondence should be marked “without prejudice”, however, just because a communication is marked “without prejudice”, protection is not automatically afforded to the entire document.

Practical Points

• Before you create any “document” on a sensitive or contentious issue, ask yourself “do I need to create this document?”. A “document” is anything in which information is recorded:

- Letters
- Agreements
- Computer documents
- Telephone tapes
- E-mails
- Voicemails
- Text messages
- Diary entries, etc
- Video
- CD Rom

• Before creating a document, think about whether you or the business would be concerned if the document were read out in public.
• DON’T create documents on sensitive issues in haste or in anger: If you do, you will regret it.
• E-mails are often ill considered, rushed and virtually indestructible. Use e-mail carefully.
• The first reaction to a crisis or a mistake is often to tell lots of people about it in unnecessary and unhelpful detail so as to share the burden and deflect criticism: DON’T write an e-mail. Call your solicitor.

DO

1. Contact your solicitor before creating any document relating to a sensitive or contentious issue.
2. Remember that, usually, only communications with lawyers are privileged.
3. Keep requests for business/practical advice separate from requests for legal advice.
4. Note that, even if a document is privileged in England, it may still be disclosable in foreign proceedings.
5. Identify the person or team of people to be involved in instructing lawyers either internally or externally. All key relevant people should be included to ensure that communications with them are privileged. Non-relevant people should be excluded to avoid waiver.
6. Ensure that your solicitor interviews people about what happened.
7. Try to ensure that all documents created for the purpose of seeking or giving advice are marked “ Confidential and subject to legal privilege”.
8. Mark all communications with the other side: “without prejudice” if you are involved in a genuine effort to resolve a dispute. But, if relevant, check this works in other jurisdictions.
9. Remember there is no such thing as a “private”, “personal”, “confidential”, “secret” or “off the record” communication. If it is relevant, recorded in any form and not privileged, you will have to disclose it. Equally, even if something in a document is “commercially confidential” (such as pricing), you cannot usually blank it out. You will have to disclose it.

DON’T

1. Assume that all communications with your solicitor will always be privileged. It depends what they are about and why they are created.
2. Assume that just marking a document “privileged” or “without prejudice” makes it so. It does not.
3. Engage in e-mail “chit chat” on sensitive or confidential matters.
4. Write e-mails or notes in hasty reaction to problems.
5. Circulate privileged documents without checking with your solicitor.
6. Assume that privilege cannot be challenged.
7. Destroy relevant documents if there is a prospect of proceedings or investigation. If in any doubt or there is any sensitivity, take legal advice first. You will also almost certainly be caught. It is virtually impossible to destroy something once it is on a computer. The attempted deletion will also be recorded and interpreted as a sign of guilt.
8. Let people produce their own written accounts of sensitive or contentious matters save under the supervision of your solicitor.
9. Take notes of sensitive discussions unless they are to be sent to your solicitor to get legal advice and/or to be used as evidence in proceedings.
10. Refer to without prejudice communications in unprivileged documents.
11. Refer to your own legal advice in communications with the other side, unless you are happy for the other side to see ALL your legal advice on the issue.
12. Assume that advice from your solicitor on presentational matters (eg, wording or press releases or offering circulars, etc) will be privileged.