Protecting Legal Professional Privilege: What You Need to Know
Legal Professional Privilege (“LPP”) is a fundamental principle under English law that protects confidential communications between a client and their lawyer. Understanding how to safeguard this privilege is critical, as it ensures that sensitive legal discussions and documents remain private and cannot be disclosed without your consent.
If you are seeking legal advice, considering taking legal action, or already involved in a legal dispute, it is important to understand the rules on. Our expert legal team in London has prepared this article to assist you to grasp the essentials of LPP.
What is LPP?
LPP protects communications between you and your lawyer when seeking or receiving legal advice. Lawyers are obligated to maintain their client’s confidentiality, meaning any information you share with your lawyer should remain private. Only you have the authority to waive this privilege, which means your lawyer cannot disclose any details of your discussions without your consent. There are two main types of LPP:
Legal Advice Privilege; and
Litigation Privilege.
Legal Advice Privilege (LAP)
LAP applies to the legal advice a lawyer provides to their client. It exists so that you can seek a lawyer’s professional opinion without worrying that your discussions might be revealed to others or used against you in court. LAP is broad, covering communications even before litigation is anticipated. For LAP to apply, a lawyer (solicitors, barristers, and supervised support staff) must be directly involved in the communication. With LAP in place, you can communicate openly and honestly, allowing us to provide the best possible advice.
Litigation Privilege (LP)
LP provides essential protection for communications made in the context of actual or anticipated litigation. It serves as a safeguard, ensuring that clients can communicate openly with their lawyers and relevant third parties without fear that these communications will be disclosed to the opposing party.
LP applies to communication between a client, their lawyer and third parties (witnesses, expert witnesses, consultants etc.) when litigation is either underway or reasonably in contemplation. Therefore, LP is far narrower in scope than LAP. In order for LP to be activated, there must be a real prospect of litigation.
When LPP Can Be Challenged?
While LPP is a strong protection, it is not absolute. The courts can sometimes compel disclosure of privileged material in cases of fraud or illegal activity (the crime-fraud exception). Similarly, LPP may be overridden by specific legislation or regulatory powers.
Key Considerations for Protecting LPP
To ensure that LPP is preserved, the following steps should be observed:
Mark Documents Appropriately: Label documents that are subject to privilege as "Privileged and Confidential." This helps distinguish them from non-privileged documents.
Keep Communications Confidential: Avoid sharing privileged information with third parties who are not directly involved in the legal matter. Disclosure to third parties can result in losing the privilege.
Separate Legal from Commercial Advice: Privilege applies to legal advice, not business or commercial advice. Be cautious when seeking a lawyer’s opinion on business matters, as it may not be covered by LPP.
Be Cautious in Group Settings: If you are discussing legal advice in a meeting, ensure that only individuals who are essential to the matter are present. The presence of non-essential third parties can destroy the confidentiality required for LPP.
Beware of Waiving Privilege: Privilege can be waived if protected communications are voluntarily disclosed to third parties. Be vigilant about sharing privileged information as this can break the protection. If LP is waived, the opposing party may gain access to your legal advice, potentially exposing your legal strategy. LP is often considered waived when a client references the legal advice they’ve received in connection with a subsequent legal or positive action. Therefore, it is crucial to avoid discussing or referring to your legal advice, whether in writing or conversation.
Conclusion
LPP is a vital protection for anyone seeking legal advice, ensuring your communications with your lawyer remain confidential. By following best practices, such as limiting the scope of your communications, marking privileged documents, and keeping discussions confidential, you can ensure that LPP is safeguarded.
If you have any questions about protecting your privileged communications or the litigation process generally, please contact our Litigation Team today by scheduling a discovery call below.
Speak to one of our legal team today ↓
Written by:
Head of Litigation, IP & Art Law
Litigation Solicitor
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