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An insight into legal professional privilege with practical steps to protect your organisation

Legal professional privilege is designed to protect the confidentiality of the lawyer/client relationship and applies to communications with in-house counsel (except for in the case of competition law) and external counsel. There are two main types of legal professional privilege: 1. Legal advice privilege - This applies to confidential communications between a lawyer and their client where such communications are for the purpose of specifically seeking or giving legal advice. 2. Litigation privilege - This applies to communications that are made at the time that litigation is in progress or reasonably contemplated; the communication must be for the sole or dominant purpose of conducting litigation and the litigation must be is adversarial (i.e. legal privilege would not cover investigative or inquisitorial matters). Whilst the above explanations of each type of privilege may seem simple and easy to apply, in practice this is very much a different matter. We have often seen organisations of different sizes believe that a communication is covered by legal professional privilege when in fact it is not for various reasons. As a result, we have provided some high-level guidelines below for in-house lawyers as well as non-legal staff so that they can ensure that matters that they wish to be or remain privilege maintain that status. Advice for in-house counsel: 1. Add the subject heading of "confidential and legally privileged" so that it’s easy to identify communications that would be covered by privilege in the instance that a review has to be conducted. 2. If you are working as an in-house counsel within a group, make sure that it is clear which entity is your direct employer (such as in your employment contract) unless it is the entire group - as your legal advice will only be privileged to the entity that employs you unless it is documented somewhere otherwise. 4. Do not circulate your legal advice too widely as it increase the risk of it losing its status of being confidential. In any communications that you send, include an express instruction that the advice should not be circulating further. 5. If you have a dual function as a legal adviser and a commercial executive, be careful not to mix your legal and strategic advice in the same communication. 6. Consider conducting basic training on privilege, its importance and the implications to non-legal staff. Staff should be made aware that anything they put in writing may later be reviewed. Advice for non-legal staff (for when engaging with in-house counsel and/or external counsel): 1. Make it clear that you're asking for advice from a lawyer (i.e. don't simply copy a lawyer into an email and assume that legal privilege will apply to your email as it will not). 2. Do not make notes on copies of legal advice received as these notes may have to be disclosed (even if the actual legal advice is not required to be disclosed) at a later stage. 3. Do not summarise legal advice in a separate communication and share it with other non-legal staff. It is better to forward a copy of the original legal advice which would be covered by privilege. 4. Do not circulate legal advice too widely as it increase the risk of it losing its status of being confidential. In any communications where you forward legal advice, include an express instruction that the advice should not be circulating further. 5. Discuss sensitive issues orally as opposed to in writing in general. Where it is necessary to make a written statement about a sensitive matter, keep it is factual as possible in case privilege cannot be claimed for your statements. Aria Grace Law We advise small, medium and large organisations on all corporate and commercial matters. Our highly experienced lawyers can assist you with conducting both simple and complex document reviews on whether communications would be covered by legal professional privilege. We are also able to assist in preparing and delivering training on legal professional privilege to in-house lawyers as well as non-legal staff. If you would like to find out more or would like to instruct us to help you, please contact us on Legal Update by Puja Modha, Partner at Aria Grace Law 10.02.2020


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