The decision is a fairly strict interpretation of privilege and has opened the door to areas of disclosure of records that the Corporation could reasonably have expected to be treated confidentially in accordance with the Rules on Privileges, in particular interview notes. The fact that the notes were taken by lawyers at a significant cost suggests that the company felt it was in dangerous territory and that it might expect to receive some form of protection through liens. The ENRC has requested a review by the Court of Appeal, and all legal counsel should be interested in understanding the result at the next stage. Legal advisory privilege is not limited to advice on the law, but also includes “advice on what to do prudently and reasonably in the respective legal context.” This includes presentation, business or strategic advice when it relates to a client`s legal rights, responsibilities, obligations and remedies. It does not apply to purely strategic or commercial advice that is not provided in a “relevant legal context”. Similarly, it does not apply to the “fruits” of a legal opinion, . B to an agreement or transfer. Lawyers` working papers are preferred if and only if they betray or give an indication of the content of the legal opinion. The privilege also extends to the advice of foreign lawyers, provided that they act in a professional capacity in the context of legal advice. It is neither necessary nor relevant to consider the training and experience of a foreign lawyer so that solicitor-client privilege can apply in the case of a foreign lawyer – solicitor`s privilege should apply to anyone working as a lawyer in a foreign jurisdiction. If it is necessary to share privileged communications with third parties, you should consider using a confidentiality agreement.
This would require the receiving party to agree that communications are privileged and that the provision of communications does not constitute a waiver of that privilege. Exception of common interest. If two parties are represented by the same lawyer in the same case, neither client may invoke the other`s solicitor-client privilege in a subsequent dispute if the subsequent dispute concerned the subject matter of the previous joint representation. Litigation privilege only applies when a dispute (or arbitration) is ongoing or contemplated. It is not necessary that there is a prospect of a legal dispute of more than 50%, but a legal dispute must be more than just a possibility: it is not necessarily enough that there is a clear possibility that sooner or later someone can make a claim. But what is the result when an employee like Smith seeks advice on an individual basis, as opposed to that of a contractor? Courts will grant solicitor-client privilege to senior managers of companies, including as individuals, provided that there is clear evidence that the agent has communicated with the agent`s individual lawyer with respect to personal matters such as possible individual liability. Not surprisingly, the presentation required by the company employee in this regard is stricter. Even if the required complaint is provided, some information may cause a conflict of interest for the in-house lawyer. In this case, the in-house attorney must end the conversation and advise the company employee to seek separate legal counsel.15 The principle was born as a protection for those who access the legal knowledge and resources available to a lawyer and stems from the lawyer`s “oath and honor,” a type of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexity of the legal and judicial system without assistance. Without protection, however, the quality of advice would suffer, as clients would be discouraged from providing full disclosure to their legal representatives.
As Lord Brougham said in Greenough v. Gaskell (1833): Since it is the client, not the lawyer, who holds the privilege, the client has the ultimate power to assert or waive it.24 If the client is a corporation, the privilege is generally considered a matter of corporate control. In other words, the management or “control group” of the corporation, including officers and directors, decides whether to claim or waive the lien.25 If and when control of the corporation changes, ownership of the lien is prey that passes to successors; it does not remain in the hands of the former management.26 Provided that the lawyer-client relationship is well established, is all communication protected? It also depends. Basic solicitor-client privilege protects the client`s communication with the lawyer. It also extends to reactive communication from the lawyer to the client. However, communication does not need to be as open as an oral or written act. On the contrary, the slightest action or inaction, such as a nod of approval or complete silence, can be a message. 20 Documents must be drawn up for the primary purpose of obtaining information or advice relating to the conduct of existing or reasonably contemplated disputes. Documents that are not included, e.B purely strategic discussions of the Board of Directors, that do not contain such information or advice or that reveal their content, are not covered by litigation privilege. The only legitimate reason to refuse documents from the “other side” is when communication is legally privileged. It is a powerful concept, but although it has been a human right in law for hundreds of years, it is still the subject of serious disputes. This year, a high-profile case is pending before the Court of Appeal.
Before seeking and receiving legal advice from in-house or external lawyers or, in the case of in-house counsel, when receiving requests for advice, determine who the “client” is, for example: whether a document is privileged is more a matter of substance than of form: it is enough to mark documents as privileged and confidential or to transmit them to a lawyer, cannot turn an unprivileged document into a privileged document. The rules and definitions below specify when the privilege applies in English law. It should not be assumed that all communications with lawyers and other non-legal counsel are protected from disclosure. Although privileged documents may circulate under English law, this must be done with the utmost care. Confidentiality is essential, and privileges can be lost if privileged material is distributed without adequate safeguards. The privilege is only linked to a confidential communication, so when the communication is no longer confidential, the communication is no longer privileged. If a document is widely distributed or made public, the privilege may be lost. .