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Legal lowdown: A question of privilege

Practical steps employers can take to ensure sensitive communications are not released unnecessarily during litigation

The scope of legal professional privilege has been an important topic recently, having been put under the spotlight by a recent High Court case which found that documents prepared during an internal investigation are not protected by legal professional privilege.

To ensure that sensitive communications are not released unnecessarily during litigation, it is therefore important for companies to understand the dos and don'ts of which documents are covered by privilege and which are not.

What is legal privilege?

There are two principal forms of legal professional privilege:

- legal advice privilege protects disclosure of confidential communications between a lawyer and client for the purposes of seeking or providing legal advice; and

- litigation privilege protects disclosure of confidential communications between lawyers or clients and third parties when litigation is in progress or contemplation.

Take legal advice at the start

If a situation arises which raises the possibility of litigation or an investigation, consider seeking legal advice at the outset. This enables the employer to know which documents are covered by privilege and which are not. The employer can then develop a strategy taking into account the possibility that certain material may have to be disclosed during proceedings. Lawyers can be involved more closely in certain stages of the work, to enable a claim for privilege to be made. Equally, if the employer knows that certain documents are not going to be privileged it can consider whether to create those documents at all.

State in the document that it is being created for privileged reasons

It is often helpful to have something in a document to indicate why it is intended to be privileged. This could be a short statement at the top of a document coupled with a label indicating the document is viewed as privileged. This will not be conclusive, but it will assist, and will also stop the inadvertent disclosure (hopefully) of the document. The dominant purpose for the document's creation is important in deciding whether legal professional privilege can be claimed.

Do not send legal advice within the employer to someone who is not the client

Legal advice privilege applies to advice given to the lawyer's client. Lawyers who are involved in investigations or disciplinary hearings, for example, need to be very clear who their client is. In a corporate setting the client is the company, but usually only certain individuals will be viewed as the employer's representatives for the purposes of receiving legal advice. Advice or indeed any documents sent to a non-client will be disclosable unless legal advice privilege applies. It would be an error to assume that all management in a company is to be treated as the client. The shorthand test is to ask who is able to give instructions on this particular matter to the lawyer doing the work.

Wearing two hats is dangerous

It is always necessary to know what capacity someone is acting in, especially if they are wearing two hats. For example, an in-house lawyer conducting an investigation into possible misconduct by a junior lawyer in the same team may be acting as a manager not a lawyer, and so their views may not be privileged at all.

Think about it

The best advice for employers is to think twice about what they put into writing. Do not put anything in writing which you would be embarrassed to see come out to the employee concerned. Think about whether something needs to be documented if it could be problematic or misinterpreted. Think how an email or a file note may read divorced from the context in which it is written. Consider adding in comments partly to explain to any third party reading it why conclusions are being reached and where different approaches have been considered.

Nicholas Robertson is head of employment in London and Francesca King is associate at Mayer Brown