In-house lawyers and legal advice privilege
Part of our series: A guide to going in-house as a lawyer in the UK
In the UK, legal professional privilege has long been viewed as a central tenet of the rule of law in protecting clients’ rights to communicate with their lawyers in confidence and without fear of disclosing those communications during litigation. The aim of this article is, from a UK law perspective, to analyse some of the main issues for in-house lawyers regarding legal advice privilege, which applies to confidential communications (written or oral) passed between a lawyer and his/her client that come into existence for the purpose of giving or receiving legal advice.
The first important point of consideration for in-house lawyers is the question of who constitutes the ‘client’ in the corporate context. For the purpose of assessing legal advice privilege, UK case law has established that the ‘client’ will not encompass all of a company’s employees, or even the whole department or division seeking the legal advice, but instead a core ‘client team’. In this sense, legal advice privilege will be limited to communications between the in-house lawyer and a relatively narrow group of people, commonly a board of directors and those within the business specifically authorised to instruct the lawyers and/or seek legal advice on behalf of the company. This restrictive definition of the ‘client’ was recently upheld in two High Court decisions which resulted in interviews between an organisation’s employees and in-house lawyers failing the legal advice privilege requirements since the employees were viewed as third parties and not part of the core ‘client team’.
Although legal privilege applies to the advice given by in-house lawyers under UK law, this is not the case in many European jurisdictions. In fact, EU law has found that communications between in-house lawyers and a company’s staff don’t warrant the protection of legal advice privilege as in-house lawyers are viewed as ‘insufficiently independent – structurally, hierarchically, and functionally’ from their employers. The consequence of this decision is that any communications between parties and in-house legal are disclosable during competition investigations by the European Commission. In this sense, even though UK law will apply to domestic competition matters, and in-house lawyer/client communications will remain protected by legal advice privilege, caution must still be taken by UK in-house lawyers as domestic competition matters often escalate into European jurisdictions where different precedents apply.
A final consideration is that the scope of legal advice privilege applies so long as in-house lawyers act in a legal rather than an executive capacity. There are potential problems for in-house lawyers here, given the tendency for in-house counsel to mix legal and commercial roles in their day-to-day activities. In this sense, there is much scope to muddy the waters regarding in which capacity in-house lawyers are acting at any given moment, and any work dealing with generic business, management, administration, strategic or commercial advice that is not legal in nature would therefore fail to attract legal advice privilege under UK law.
Based on the above considerations, some general advice for in-house counsel is as follows:
– Mixing legal and operational advice in the same communication should be avoided as much as possible since confusion in this regard could lead to a loss of privilege.
– Ensure that any advice is linked to a relevant legal context so it can’t be viewed as generic business advice.
– In relation to defining the ‘client’ for privilege purposes, it would be advisable to carefully define the corporate entity’s ‘client team’ at the outset, i.e. those primarily responsible for instructing and receiving advice from the lawyer, and to limit communications to this core team.
– Related to the previous point, carefully consider if the wider dissemination of legal advice within the organisation, especially by email, would result in a loss of privilege because it is being communicated to non-client team members.
– Since company activities may have implications in different jurisdictions, a privileged document under UK law may become disclosable at EU level. To reduce this risk, privileged documents should not be circulated outside the domestic jurisdiction without first determining the privilege rules in force in the overseas jurisdiction and instructing a local lawyer to advise on local law and disclosure issues.
You can read our other tips for UK lawyers considering moving in-house here:
Disclaimer: This article is not, nor does it purport to be, legal advice.