Law Society issues note on legal professional privilege in bid to defuse tensions

February 27, 2017

The Law Society has issued a practice note on legal professional privilege (LPP) aimed at helping to defuse tensions that have begun to emerge around it.

Chancery Lane said the note was intended to:

clarify the status of LPP
explore recent concerns about how the right has been asserted
summarise practitioners’ duties
clarify the main principles of LPP

In the note, the Law Society says: “The purpose of this guidance is not only to remind practitioners of the unique right that LPP confers on our clients when they approach us for legal advice and assistance, but also of the corresponding responsibility that is placed on legal professionals to ensure that LPP is only asserted on behalf of our clients where there are proper grounds for doing so.

“This balance between the clients’ right and the legal professions’ obligations is particularly important when concerns are expressed from time to time as to whether this long-established right is one that the legal profession is guilty of misusing by advising their clients to assert LPP without any justifiable basis for doing so.”

The note adds: “These concerns are usually misplaced and often demonstrate some ignorance as to the proper scope of LPP, and especially as to the nature of LPP as a right which belongs to the client and not the legal adviser. This fact notwithstanding, the last few years have seen increasing criticism of the legal profession for the way in which LPP is asserted in some arenas, with growing attempts by some parts of government to encroach upon the sacrosanct nature of LPP.

“In addition, certain regulatory bodies and enforcement authorities have voiced concerns that they sometimes see LPP being used to frustrate their efforts to undertake fully informed investigations because clients, on advice, advance claims to LPP which are not necessarily made in good faith.”

Solicitors should advise their clients when proper grounds for asserting privilege exist, the note says. “It follows that solicitors cannot and should not be criticised for advising clients on their entitlement to rely upon LPP. If those clients justifiably assert their privilege, then, in accordance with long-standing common law principles, they should not in any way be criticised or penalised for doing so, nor regarded as being uncooperative - and nor should their legal advisers. Indeed, a legal adviser who waives privilege without the informed consent of the client would be in breach of his professional duties.”

The note covers:

Introduction: who should read the note; what the issue is; what LPP is;
Overview: the main principles of LPP;
Purpose of the guidance;
Overview of LPP;
Legal advice privilege;
Litigation privilege;
LPP in internal investigations;
Is the information or material requested capable of being privileged?
Has LPP been abrogated by parliament?
Has LPP been waived?
Has LPP been defeated by the client’s actions?
Where a claim to LPP is properly made, it is absolute;
Law enforcement agencies and regulators are not entitled to decide themselves whether a claim to LPP is properly made;
What to do in the event of a suspected abuse of the retainer;
In all other cases, unless and until your client waives LPP you are professionally obliged to assert it;
Where a claim to LPP Is properly made no action can be taken against you for asserting it, and no action can be taken against your client for refusing to grant any waiver sought by law enforcement agencies or regulators;
LPP protections differ from country to country.