Legal professional privilege for in-house lawyers—overview
*This content comes from Lexis®PSL and features external links to subscriber-only content*
The Legal professional privilege subtopic in Lexis®PSL explains the concept of privilege between clients and their lawyers from the perspective of an in-house lawyer.
What is legal professional privilege?
Legal professional privilege (LPP) protects the confidentiality of written and oral communications between lawyers and clients. It entitles a party to withhold evidence from production to a third party or court.
Legal advice privilege (LAP) and litigation privilege are distinct forms of LPP.
Legal advice privilege
LAP enables clients to put complete confidence in their lawyer. It applies to communications made in confidence, between lawyer and client, for the purpose of giving or receiving legal advice.
There are four essential elements; all of which must exist for LAP to apply:
- legal advice
Legal advice given by in-house lawyers, whether privately or publicly employed, will attract LPP in the same way as any other lawyer, and the privilege will extend to employees supervised by the in-house lawyer in their capacity as an in-house lawyer.
The advice can relate to contentious or non-contentious matters—the emphasis is on advice between lawyer and client.
Sometimes advice in an in-house context is not purely legal advice. Communications in the context of the administrative, executive, commercial and other business functions of the in-house lawyer will not be protected by privilege. Practically, then, in-house lawyers should be careful about straying.
Note also that in the context of EU competition law, the Court of Justice has held that communications with in-house lawyers will not be treated as privileged.
See further Lexis®PSL Practice Note: Legal professional privilege—what it means for in-house lawyers and the organisations they advise.
Litigation privilege differs from LAP by acting to protect communications between (i) a lawyer and their client, or (ii) their client and a third party.
In order to attract litigation privilege the communication must be made for sole or the dominant purpose of conducting litigation. That litigation must be existing, pending, or reasonably contemplated. The burden of establishing these matters lies upon the party claiming the privilege.
There are three elements to litigation privilege:
- dominant purpose
Each of these elements is explained in more detail in Lexis®PSL Practice Note: Legal professional privilege—what it means for in-house lawyers and the organisations they advise.
LPP in other jurisdictions
The concept and application of legal privilege differs wildly across jurisdictions. It may be helpful to try and obtain a level of understanding of legal privilege as it applies in the jurisdictions your organisation operates in.
Lexis®PSL Practice Note: Legal professional privilege—what it means for in-house lawyers and the organisations they advise contains a snapshot of legal privilege in four key commercial jurisdictions, namely:
- the USA
- People’s Republic of China
Common headaches and practical tips
Lexis®PSL Practice Note: In-house lawyers and LPP—common headaches and practical tips details common headaches for in-house lawyers concerning LPP and contains practical tips on how to deal with them, including:
- explaining LPP to your colleagues
- marking documents
- protecting privilege
- attracting and preserving litigation privilege
- dealing with investigatory authorities and regulators
- guiding your business through a crisis
Other guidance and tools
The Lexis®PSL legal professional privilege subtopic also contains:
- an in-house legal professional privilege checklist which pulls together key good practice recommendations in relation to attracting and preserving LPP across your organisation and includes a section for you to mark whether you have completed each point and also to insert comments or note action points, and
- Legal professional privilege—quick guide for staff which is intended to be used to explain to staff exactly what legal professional privilege is and how best to protect i
- Legal professional privilege—top ten tips which is intended to be used to highlight key messages to staff on how to attract and then protect legal professional privilege, and
- Litigation privilege log which you can use to record important details when establishing and protecting litigation privilege
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