Legal professional privilege can be inadvertently waived, meaning you will have to hand over potentially damaging information. Here’s how to stop that happening

Sue Harris

Legal professional privilege (and in particular its application to claims consultants) has been the subject of much discussion in these pages recently, but why has the topic generated so much interest?

If a document is subject to legal professional privilege, then it cannot be made available to anyone else, unless the person who has the benefit of legal professional privilege gives their consent. This means that they can withhold the document from both the court and the other side in litigation.

There are two types of legal professional privilege - legal advice privilege, which applies to confidential communications between lawyers and their clients for the dominant purpose of giving or receiving legal advice, and litigation privilege, which applies to confidential communications between either lawyers and their clients, lawyers and a third party or the clients and a third party for the dominant purpose of being used in actual or pending litigation (and as you might expect whether a document falls into this category is a matter of fact in each case and can be challenged by the other side).

Legal professional privilege’s purpose is to allow people to fully disclose details of their affairs to their lawyers when seeking advice, safe in the knowledge that this information cannot be seen by the other side. But the unwary can waive legal professional privilege without even realising it, meaning they have to hand over potentially damaging documents.

There are a number of steps you can take to avoid inadvertently waiving privilege:

  • Involve lawyers (whether in-house or external) as soon as possible, particularly when a dispute manifests itself - this will ensure that the issue of privilege is addressed early on and maintained and maximised wherever possible. However, simply copying a lawyer into an email will not automatically mean that the email and its attachments are privileged. When seeking legal advice, email the lawyers directly and make it clear that you are asking for their advice
  • Identify who the “client” is - if there is no current prospect of litigation then only communications between lawyers and the client will be privileged, so you need to identify individuals within your organisation who are primarily responsible for obtaining legal advice on the particular issue. Only these individuals should communicate with the lawyers
  • Legal advice and privileged documents should only be circulated to those who actually need to have them - the more widely these are circulated, the more likely it is that they will cease to be confidential and privilege lost. If such documents do need to be circulated to third parties, consider entering into an express confidentiality and non-waiver of privilege agreement
  • Do not create unnecessary documents. Ideally, any documents which are created should form part of draft communications seeking legal advice, which are more likely to benefit from legal professional privilege than freestanding notes and reports
  • Do not make handwritten notes on privileged documents as the notes are unlikely to be privileged
  • If sensitive issues need to be discussed with third parties, including other professional advisers, then, so far as possible, these discussions should be dealt with orally over the telephone or at a meeting rather than by letter, fax, email or text
  • In-house lawyers should ensure that legal advice and business advice are not given in the same communication as only legal advice given by in-house lawyers attracts legal professional privilege.

Finally, make sure that all documents potentially relevant to the dispute are preserved by:

  • Storing hard copy documents somewhere safe - these include correspondence, faxes, memoranda, reports, photographs, plans, diaries and board minutes
  • Suspending any routine policy for deleting electronically stored information and retrieving the information from emails, hard drives, servers, mobile devices, memory sticks etc.

Destroying such documents could have serious implications for your case and may be contempt of court, which can be penalised by imprisonment.

Get this difficult issue wrong and you may have to reveal information to the other side that will probably be to your detriment. It is important to ensure that procedures are put in place to preserve legal professional privilege as soon as possible.

Waive privilege and you could be waving goodbye to your chances of success.

Sue Harris is a director at law firm Walker Morris