Legal professional privilege for in-house lawyers—overview

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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
  • confidentiality
  • lawyer
  • client

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

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:

  • confidentiality
  • dominant purpose
  • litigation

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
  • Japan
  • Luxembourg

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:

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