Natalie Turner explains why the Law Society’s new practice note on legal professional privilege (LPP) should be on everyone’s required reading list.

One could be forgiven for thinking that LPP is under attack. With the growing perception (and arguably the reality) that sophisticated digital and white-collar crime is on the increase, there is also a growing belief that LPP is used by lawyers and their clients as a shield for wrongdoing, and that LPP is detrimental to the public interest.

In fact, quite the reverse is true. The words of Lord Halsbury come to mind in Bullivant v AG of Victoria [1901] AC 196: ‘for the perfect administration of justice and for the protection of confidence that exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.’ More recently, in R (Morgan Grenfell & Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, Lord Hoffman pointed out that privilege was not simply a procedural right. It was a ‘fundamental human right long established in the common law’ and ‘a necessary corollary of the right of any person to obtain skilled advice about the law’.

For that reason, all solicitors will find the Law Society’s practice note on LPP is a valuable resource. It is no exaggeration to say that a good knowledge of the principles behind LPP and how they apply is a most useful tool for any solicitor.

The practice note is the culmination of the work of a number of the most distinguished thinkers in this area of law and the Law Society is extremely grateful for their contribution.

Although the practice note applies equally to private and in-house practice, in-house lawyers should note in particular the comments in sections 5-8 of the note. Here, the note advises caution where the in-house lawyer may be both advising on legal issues and collecting evidence as part of an internal investigation. Careful consideration needs to be given to the question whether the legal adviser, as an employee of the organisation, would fall within the definition of ‘the client’ for the purpose of communications between the organisation and its external legal advisers. Although problematic, the decision in Three Rivers District Council v the Governor and Company of the Bank of England (No 5) [2003] EWCA Civ 474 is worth considering carefully, so that communications that were made in the expectation that they would be privileged meet the necessary requirements to retain that status. 

There is a good deal of additional guidance in the practice note which the in-house lawyer will find helpful. It is hoped that the guidance it provides will help solicitors to confidently advise their clients, on appropriate grounds, of their right to assert LPP, without fear of criticism.

Natalie Turner is a legal adviser in the Law Society Legal Services department.