Want to keep that email privileged?

Most people working in the frequently frenetic world of media will, at some point in their career, have to message their in-house counsel. In some circumstances, they might not want that message disclosed to a court. What’s the best way to ensure that doesn’t happen? The best way is to have a face-to-face conversation (you may even get a free smoking monkey). However, a personal meeting isn't always possible. The second best is relying on the 'legal privilege' that can attach to written communications - read on to find out what it is and how you can make use of it when working with your in-house legal team to ensure your messages aren't disclosed to a court…

Is 'legal privilege' the fact that 22% of all lawyers attended fee paying schools, compared with 7% of the UK population? No, but that’s not a great statistic. Thankfully firm’s diversity efforts have already helped reduce the disparity by 4% between 2014 and 20151.

Sorry, couldn't resist getting political. What is ‘legal privilege’? Legal privilege (or legal professional privilege) in a broad sense protects against compulsory disclosure of confidential2 communications.

Please be more specific. Legal privilege under English law is split into legal advice privilege and litigation privilege.

Both sound riveting, but tell me about legal advice privilege first. Legal advice privilege applies when a client seeks advice from a lawyer within a relevant legal context.

“Relevant legal context” sounds pretty vague. Quite.

So if I’m seeking your legal assistance, that’s “legal context”. Yup3… although it depends who you are.

Go on… You must have been specifically charged with seeking and receiving legal advice on your company's behalf and not just be anyone looking to work out if their actions are legally compliant.

Does it depend who you are too? It does. Privilege attaches to members of the legal profession? and non-qualified employees? provided they are “properly supervised” by a qualified lawyer.

But isn’t the situation a bit muddier for in-house lawyers? It sure is. Where in-house lawyers wear both a legal and a business affairs/company management ‘hat’, their communications will only be privileged to the extent their advice was solely in their legal professional capacity.

Is this that Three Rivers case? Spot on. If the lawyer strays from “advice relat[ing] to the rights, liabilities, obligations or remedies of the client either under private law or under public law” and into company strategy/management advice, privilege in the whole communication could be lost. Further, no privilege is attracted to communications between in-house lawyers and clients in EU competition investigations.?

Once I've got your privileged advice, can I share it? You can share it with a limited group of people within your company (on a "need to know" basis) to maintain its confidentiality and, provided there is a commercial justification, with a similarly limited group from a group company.

What about litigation privilege? On a bare-bones basis, litigation privilege applies to communications arising where litigation is pending, reasonably contemplated or underway and the communication is for the “dominant purpose”? of such litigation.

How does it differ from advice privilege? It covers third parties so in-house concerns around who is a relevant employee and commercial justifications for sharing with group companies fall away.

This article is losing steam, isn't it? It is. Look at the rough flowchart below.

1 See the SRA's ‘business case for diversity’ and their report into the diversity of law firms.

2 The message should be: (i) circulated to a limited number of individuals who need to know the information (department wide messages for example will not be considered confidential even if marked as such): (ii) have “the necessary quality of confidence” i.e. not public knowledge; (iii) be disclosed in circumstances importing an obligation of confidence (i.e. the recipient would reasonably believe the information gave rise to a duty of confidence).

3 Three Rivers DC v Bank of England (Disclosure) (No.3) [2004] – “It is in most cases difficult to imagine ... how in practice a communication to one's lawyer could ever be anything other than for the dominant purpose of obtaining his assistance."

? Qualified barristers, solicitors, legal executives and foreign lawyers. This list could also include any individual provided the client in good faith thought such individual was a qualified lawyer - Dadourian Group International Inc v Simms [2008].

? Trainees, secretaries, barrister clerks, pupils and paralegals.

? Akzo Nobel Chemicals and Akcros Chemicals Ltd v Commission (C-550/07P) [2010]. In-house lawyers are advised to contact external counsel in such eventualities.

? But not exclusive purpose.

Boring disclaimer - I've written/created the above in my personal capacity (as a legal nerd) for information purposes only and it is not intended to be legal advice. I make no warranty of any kind and will not be responsible for any actions (or inactions) if anyone is foolish enough to rely on my writing.