In-house legal professional privilege checklist

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This In-house legal professional privilege checklist pulls together key good practice recommendations in relation to attracting and preserving legal professional privilege (LPP) across your organisation. There is a section for you to mark whether you have completed each point and also to insert comments or note action points.

For more guidance, see Lexis®PSL Practice Notes: In-house lawyers and LPP—common headaches and practical tips and Legal professional privilege—what it means for in-house lawyers and the organisations they advise.

Explaining LPP to colleagues

Recommendation

Comment/Action

☐ Ensure you are able to articulate exactly what privilege is to your colleagues.

Explain how privilege works and what is needed.

See Lexis®PSL Precedents: Legal professional privilege—quick guide for staff and Legal professional privilege—top ten tips.

[Insert comment or action]

Document creation/dissemination

Recommendation

Comment/Action

☐ Advise staff that they should be careful about unnecessarily creating and disseminating documents.

See Lexis®PSL Precedents: Legal professional privilege—quick guide for staff and Legal professional privilege—top ten tips.

[Insert comment or action]

☐ Consider banning the use of e-mail for circulating legally privileged documents.

See Lexis®PSL Precedents: Legal professional privilege—quick guide for staff and Legal professional privilege—top ten tips.

[Insert comment or action]

☐ Remind staff not to refer to legal advice or other privileged material in e-mails, save where necessary and in communications which are themselves limited to and protected by privilege.

[Insert comment or action]

☐ Encourage staff to change their approach on retaining information/documents and discourage hoarding.

See Lexis®PSL Precedent: Records retention schedule.

[Insert comment or action]

Defining the ‘client’

Recommendation

Comment/Action

☐ Clearly define those within the organisation who constitute ‘the client’ for the purposes of requesting and receiving general legal advice on the part of the organisation.

[Insert comment or action]

Marking communications and documents

Recommendation

Comment/Action

☐ Ensure communications with the client in connection with the giving and receiving of legal advice are marked as privileged and kept separate from communications not relating to the giving/receiving of legal advice.

[Insert comment or action]

☐ Consider adopting a labelling convention where you wish to attract LPP, eg:

—mark the document 'legally privileged'

—state the purpose of the contents of the document, eg 'for the purpose of legal advice', and

—consider adding the term 'confidential', in case legal professional privilege falls away

See Lexis®PSL Precedents: Legal professional privilege—quick guide for staff and Legal professional privilege—top ten tips.

[Insert comment or action]

☐ Advise staff not to use the label ‘without prejudice’ unless agreed with the legal team.

See Lexis®PSL Practice Note: Legal professional privilege—what it means for in-house lawyers and the organisations they advise—Without prejudice communications.

[Insert comment or action]

☐ Remind colleagues that care should be taken not to mark communications as ‘privileged’ unless they genuinely are privileged.

See Lexis®PSL Precedent: Legal professional privilege—quick guide for staff.

[Insert comment or action]

Privilege in litigation

Recommendation

Comment/Action

☐ Have a process to record key factors for establishing and protecting litigation privilege, eg:

—that litigation is anticipated

—the grounds for believing litigation is anticipated

—the date, and

—details of any third parties engaged, including their dominant purpose

See Lexis®PSL Precedent: Litigation privilege log.

[Insert comment or action]

Meeting agendas and minutes

Recommendation

Comment/Action

☐ Instruct all relevant staff to clearly label items on any agenda that are privileged or leave legally privileged items to the end of a meeting so you can easily create separate minutes for those items. See Lexis®PSL Precedent: Legal professional privilege—quick guide for staff.

[Insert comment or action]

☐ Ensure relevant staff understand the importance of taking care when recording meeting minutes, ie where privileged and non-privileged matters are discussed in the same meeting:

—record the minutes of that meeting in two separate parts—one covering the privileged agenda items, and the other the remainder, and

—ensure each set of minutes refers to the existence of the other, but do not give away the tenor of the advice given.

[Insert comment or action]

☐ Encourage a ‘less is more’ approach to recording minutes.

[Insert comment or action]

‘Non-legal’ advice

Recommendation

Comment/Action

☐ Have a process to clearly separate:

—advice given by the legal team in a legal context with that given, and

—non-legal advice, eg commercial advice given by the legal team

[Insert comment or action]

Dealing with auditors and investigatory bodies

Recommendation

Comment/Action

☐ If it is necessary to share otherwise privileged material with your auditor, do this on an expressly exclusive and confidential basis.

See further Lexis®PSL Practice Note: Legal professional privilege—what it means for in-house lawyers and the organisations they advise.

[Insert comment or action]

☐ Update your reasons for anticipating litigation as necessary to reflect factual changes.

See Lexis®PSL Precedent: Litigation privilege log.

[Insert comment or action]

☐ In situations where facts or circumstances informing your view that litigation is reasonably in prospect are damaging to the client, and disclosure of that advice may defeat the purpose of the privilege, prepare two documents setting out your advice that litigation privilege applies:

—one in broader terms for disclosure if necessary, and

—one in a privileged document which records in full the advice

[Insert comment or action]

☐ Have a company mandate in relation to dealing with regulators, eg we will not [under any circumstances OR without approval from General Counsel], disclose legally privileged documents/information.

[Insert comment or action]

☐ Where you have to send legally privileged material to a regulator, request a signed non-waiver agreement.

See Lexis®PSL subtopics: Internal investigations and Dealing with regulators.

[Insert comment or action]