Legal Professional Privilege

Question 2

There has been some criticism of legal professionals on their use of legal professional privilege (LPP) in a way that frustrates the attempts of enforcement authorities and regulatory bodies to undertake effective and informed investigations; one of the recent criticisms has come from the Law Society. This essay critically assesses the nature of relationship between lawyers and their clients and the role of confidentiality and legal privilege in this context. The essay first discusses the use of LPP in the context of confidentiality, then analyses LPP in light of criticism of Law Society about the way in which LPP can be used for frustrating efforts of enforcement authorities and regulatory bodies.

LPP or legal privilege is one of the general principles that relate to the relationship between the client and the solicitor or barrister and it is described as being situated at the “intersection between professional conduct rules, more general precepts about duties of confidence we owe to others, and common law principles designed to protect the functioning of the legal system.” There are two kinds of LPP, one that relates to legal advice privilege and covers communications between the lawyer and the client seeking advice and litigation privilege, which relates to communications between lawyers, their clients and at times even third parties, with the main purpose relating to litigation.

LPP is particularly linked to the duty of confidentiality which is an important part of the relationship between a solicitor and their client; this duty of confidentiality is related to the duty to avoid disclosure of the documents or communications with the client without the permission of the client. This is not to say that LPP prohibits disclosure of all kinds of documents and communication; for instance, in Barclays Bank v Eustice, the court refused to extend LPP to documents prepared by the solicitor to cause harm to the bank. With regard to advice privilege in particular, courts have evolved the ‘dominant purpose’ test to assess whether the communication is privileged or not, and this is done on the basis of whether the giving or seeking of legal advice was dominant purpose of a communication between the lawyer and client. Generally speaking, it is accepted that all forms of communications between solicitors and clients are not privileged. Nevertheless, for solicitors, the duty to keep the information about their clients confidential is one of the important part of legal ethics and is also mentioned in the latest SRA Handbook on principles and codes which became effective in 2019. Therefore, professional conduct rules are clear on the duty of solicitors to not disclose their client’s privileged information.

The extent to which the LPP is applicable to prevent disclosure of client’s confidential information is also to be seen in the context of the duty not being absolute, and there being certain exceptions in common law under which the solicitor may be asked to reveal information. Thus, for example, the solicitor may be required to share information in case of overriding public interest so that if the client is involved in fraudulent activities, then the solicitor may be required to share information. This was seen in the case of Finer v Miro, wherein the Court of Appeal held that if the solicitor believes that information held in trust relates to some fraudulent acts of the client, then such information can be revealed.

1. The Law Society, Fighting back in the war on privilege (Law Society Gazette 2019).
2. Lisa Webley, ‘Interception of communications and legal professional privilege and the rule of law’ (2016) 19 (1) Legal Ethics 173, 173.
3. Ibid.
4. Waugh v British Railways’ Board [1980] AC 521.
5. Barclays Bank plc v Eustice [1995] 4 All ER 511.
6. Civil Aviation Authority v. R Jet2 ([2020] EWCA Civ 35.
7. Three Rivers Council v. The Governor and Company of the Bank of England (No 5) ([2003] EWCA Civ 474.
8. Solicitors Regulation Authority (SRA) Code Handbook 2019.
9. W v Egdell [1990] Ch. 359.
10. Finers (a firm) and others v Miro [1991] 1 WLR 35.

The duty of the solicitor to not disclose confidential information of the client is also linked to the principle of partisanship which is one of the three aspects of the standard conceptualisation of lawyer’s role. The principal of partisanship relates to the lawyer’s duty to put his client’s interests above interests of third parties, and the duty of confidentiality is related to this principle. This was articulated by the court in Annesley v Anglesley, where the court held that the duty of confidentiality is derived from three principles that reflects on the relationship between the lawyer and the client: first, a gentleman does not betray the secrets of the client; second, a lawyer identifies with his client and it is against the principles of natural justice to betray oneself; and third, lawyers facilitate businesses and if they violate confidentiality of the clients, this would adversely affect the conduct of business. Due to these principles, there is a duty on the solicitor to not disclose confidential information about the client and this is related to the standard conceptualisation of the role of the lawyer and the principle of partisanship. This duty is also recognised in Section 58(1) Police and Criminal Evidence Act 1984. However, LPP is not recognised to be a principle that is transcendent in English Law as noted by the House of Lords’ Re McE.

Irrespective of the duty of the solicitor to not reveal confidential information about the client, this duty cannot be extended to the point that it is used to facilitate criminal or fraudulent activities of the clients, or to frustrate the efforts of the enforcement authorities and regulatory bodies to conduct investigation into such activities. This is the area where the criticisms of the Law Society related to the use of LPP is related to. The next part of this essay explores the use of LPP by solicitors in a way that leads to such criticism. Edwards v Lee exemplifies this as in this case the solicitor used LPP for not revealing information about client’s criminal antecedents in a letter of reference for the client’s purchase of Mercedes on credit; and led to the loss for the dealership when the client ran away with the car and did not pay the dealer. Interestingly, in this case the court observed that LPP does not permit the solicitor to mention such information in the reference note. Another case that shows the perverse outcomes for third parties that can arise due to LPP use by legal professionals is R. v. Derby Magistrates' Court; this case involved the use of LPP to prevent disclosure of client’s communication related to a murder trial, which was sought by the defendant’s side as this would have helped establish defendant’s case.

Even if there are some problems with the use of the LPP as it leads to adverse outcomes for third parties or may be used by the solicitors to frustrate investigation by regulatory bodies and enforcement authorities, it is important to protect LPP because it is an important part of the client and lawyer relationship; moreover, as noted above, the principle of partisanship requires that the lawyer has to protect the interest of his client over the interests of the third parties. Nevertheless, LPP cannot be absolute and is indeed not an absolute principle. It is in this context that LPP use can be restricted especially for public interest or public policy, but these activities where protection of LPP is not extended should be clearly noted so that there are no existing uncertainties around the interpretation of professional secrecy; this can be done by the regulators and bars. It is only in these clearly defined areas that LPP cannot be permitted to be used; it is otherwise a general rule that is applicable to the relationship between the client and the solicitor.

1. Andrew Boon, Ethics and Conduct of Lawyers in England and Wales (3rd ed., Hart Publishing 2014) 25.
2. Annesley v Anglesley 17 How. St. Trials 1139 (1743).
3. Re McE [2009] 1 AC 908
4. David J Middleton and Michael Levi, ‘The role of solicitors in facilitating ‘organized crime’: situational crime opportunities and their regulation’ (2005) 42(2-3) Crime, Law and Social Change 123.
5. The Law Society, Fighting back in the war on privilege (Law Society Gazette 2019).
6. Edwards v Lee[1991] NLJR 1517.
7. Ibid.
8. R. v. Derby Magistrates' Court [1996] A.C. 487 (H.L.).
9. The Law Society, Fighting back in the war on privilege (Law Society Gazette 2019).

To conclude this essay, LPP is an essential aspect of the relationship between the solicitor and the client and is particularly linked to the principle of partisanship. Nevertheless, privilege is not an absolute concept, and there are activities and communications to which the privilege will not extend. However, considering the importance of confidentiality in the relationship between the client and lawyer, it is essential that LPP be protected, but at the same time solicitors should not be allowed to use LPP to facilitate criminal and fraudulent activities of their clients. In order to draw a balance between the need to protect the confidentiality of client’s information with the need to allow enforcement authorities and regulatory bodies to conduct effective investigations, it would be desirable that clear descriptions of where LPP is applicable and where it is not, is done by regulatory bodies.

Books

Boon A, Ethics and Conduct of Lawyers in England and Wales (3rd ed., Hart Publishing 2014)

Journals

Middleton DJ and Levi M, ‘The role of solicitors in facilitating ‘organized crime’: situational crime opportunities and their regulation’ (2005) 42(2-3) Crime, Law and Social Change 123.

Webley L, ‘Interception of communications and legal professional privilege and the rule of law’ (2016) 19 (1) Legal Ethics 173.

Reports

Law Society, Fighting back in the war on privilege (Law Society Gazette 2019).