Legal Professional Privilege in England and Wales - Requirements For Legal Advice Privilege

Requirements For Legal Advice Privilege

For legal advice privilege to apply, the communications in question must be with a professional legal adviser with the sole or dominant purpose of giving or obtaining legal advice. Legal advice privilege extends to advice from salaried (in-house) legal advisers employed by government departments or commercial companies as much as from barristers and solicitors in private practice. The law does not regard the position of these in-house legal advisors as being different from those in private practice:

… They are, no doubt, servants or agents of the employer. For that reason thought they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. Thy and their clients have the same privileges. … I speak, of course of their communications in the capacity of legal advisers. —Lord Denning

Legal advice privilege also applies to communications with foreign lawyers, where the necessary relationship of lawyer and client exists. It does not extend to advisors who are not legally qualified or to communications with members of other professions.

All statements made at joint consultations between parties and their respective solicitors and counsel, even though made by one party to the solicitor or counsel of the other party, are privileged. So are communications made in a professional capacity for the purpose of giving or receiving professional advice, including information received by a solicitor in a professional capacity from a third party and communicated to the client.

The test for legal advice privilege is to establish whether the communication in question was made confidentially for the purpose of legal advice – construing such purposes broadly. That breadth was emphasized by the House of Lords, which has stated that the policy justification for legal advice privilege rests not simply on the right of the individual to obtain confidential legal advice, but also on the public interest in the observance if law and the administration of justice. The House therefore decided that legal advice privilege was to be given the scope commensurate with these wide policy considerations. To achieve this end, legal advice could not be narrowly construed to be limited to advice on the client's legal rights and liabilities. It would be broadly construed, to include advice as to what should prudently and sensibly be done in the relevant legal context. Where there was doubt about the relevant legal context, the court should ask (a) whether the advice related to the rights, liabilities, obligations or remedies of the client under either private or public law; and, if so, (b) whether the communication fell within the policy justification for the privilege.