Who Can Waive Legal Professional Privilege

At the time of confidential disclosure of the privileged document or confidential communication, the sharing party and the recipient must have a common interest in the legal advice or anticipated litigation or litigation in respect of which the document is disclosed. Privilege is a substantive right and a powerful instrument under English law that gives individuals and businesses the right to object to the disclosure of confidential and potentially sensitive documents to third parties, including regulators and prosecutors. There are two main types of privileges in English law that can protect communications related to investigations: Solicitor-client privilege refers to legal privilege that maintains the secrecy of communications between a lawyer and his client. Solicitor-client privilege is invoked if there is a legal requirement for such communications, for example: a request to the lawyer to testify under oath or a request for disclosure. Typically, it includes oral and written legal advice and conversations between a lawyer and his client. The waters become murkier if the potential customer is a business unit. In the corporate context, solicitor-client privilege exists between external lawyers and the company. However, the exercise of this right by a corporation is necessarily more complex than when a person is involved, since a corporation is an artificial “person” created by law and can only act through a representative, including officers, directors and employees. For there to be only a limited waiver, the party sharing the document must retain full control over the subsequent distribution of the document. In this way, the party sharing the document does not act in a manner that is incompatible with the confidentiality of the privileged document in relation to the rest of the world (see our Quick Guide to “Waiver of Solicitor-Client Privilege”).

It follows that the party does not waive the privilege provided for in the document. The contents of this publication are provided for reference purposes only and may not be current at the time of access to this publication. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your particular situation should always be obtained separately before taking any action on the basis of this publication. It is often impractical to have privileged communication with a very small “group of customers” within an organization. It may be necessary to disseminate legal advice beyond the “client group” within a company so that it can be further discussed or action points can be achieved. The Company may also wish to share privileged documents with third parties such as accountants, auditors and regulators. Privileges may be protected in these circumstances, but active action must be taken. The work product doctrine protects documents and material created in anticipation of or during litigation by (or for) another party or its representative from disclosure to third parties. The work product protects, for example, information collected from a client at the request of a lawyer; a lawyer`s notes on the examination of witnesses; summaries and chronologies of facts prepared by defence counsel; and a lawyer`s strategies, legal theories and other mental impressions of the issues at stake in the dispute. Unlike solicitor-client privilege, there is no need for notice for the work product doctrine to apply, and protected information must not contain legal advice or be prepared by the client or lawyer.

A final consideration arises with regard to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. Although privilege has evolved, countless political justifications have played a role in its development. Basically, privilege ensures “that a person who seeks advice or assistance from a lawyer should be completely free from fear that his secrets will be revealed.” 2 The underlying principle of the privilege is therefore to provide “sound legal advice [and] advocacy services”. 3 With security of privilege, the client can speak openly and openly with a lawyer, pass on all relevant information to the lawyer, and create a “privacy zone.” 4 In other words, protected by privilege, the client may be more willing to communicate in order to offer advice that might otherwise be removed.

In theory, such openness and honesty will help the lawyer provide more accurate and well-reasoned professional advice, and the client can be assured that his or her statements to his or her lawyer will not be interpreted as an adverse admission or used against his or her interests.5 Indeed, fully informed legal counsel are better equipped to “discharge all their professional responsibilities, to discharge their duties of good faith and loyalty to the client and to contribute to the effective administration of justice. 6 Solicitor-client privilege in the United States has its origins in English common law and is one of the oldest privileges in the common law and the American legal system. The ability to communicate openly without fear that others will force one of the parties involved – a lawyer or a client – to disclose the communication is at the heart of solicitor-client privilege. Privilege recognizes that sound legal advice or advocacy serves public purposes and that such advice or pleadings depend on the client fully informing the lawyer. Solicitor-client privilege is generally absolute and applies in both procedural and extrajudicial contexts. It may be invoked in all proceedings in which testimony may be compelled, including civil, criminal, administrative, regulatory and disciplinary proceedings. Should privileged documents be shared with third parties, including regulators and prosecutors? If so, what and when? These are common questions when conducting investigations. Confidentiality is key; The privilege only applies to documents or communications that are confidential, and if they are no longer confidential, the privilege is lost. The privilege of the common interest and the common privilege can coexist, but there is one essential difference: the “common” character of the common privilege means that all holders of the common privilege must agree to renounce it. The same is generally true for holders of privileges of common interest, but there is the exception noted above that fairness may require that disclosure by a holder of the privilege of common interest can effectively waive the privilege for all. The same risks arise when sharing privileged material with third parties outside the client company, including co-defendants, regulators, and prosecutors.

In addition to the above safeguards, it should be clarified the limited purpose for which the advice will be disclosed and that no waiver of privileges vis-à-vis the rest of the world is foreseen. Confidentiality agreements may also be appropriate.