Legal Professional Privilege and Confidentiality/ Asserting Legal Advice Privilege

The right to legal professional privilege is another right which a client may have when he is being represented by a lawyer. Describing the legal context of the barrister’s ethical obligations on privilege/confidentiality, a client’s right in communicating to a barrister without fear of the communication being revealed is a fundamental condition on which the administration of justice rest.[1]

 There are two protections in the Legal Professional Privilege, namely, Legal Advice Privilege and Litigation Privilege.

Legal Advice Privilege:  Certain elements need to be satisfied for legal advice privilege to exist. There must be an authorised client who would be protected by legal advice privilege. In Three Rivers District Council v Governor and Company of the Bank of England, it was held that ‘the purpose of legal professional privilege was to enable legal advice to be sought and given in confidence; that a document was covered by privilege if it had been made confidentially for the purpose of legal advice, and that legal advice privilege included advice as to what should prudently and sensibly be done in the relevant legal context.[2] It also has to show that the dominant purpose of the communication or document was to obtain to give legal advice.[3]

The privilege is the client’s right,[4] whereby a client can make statements or disclose documents in confidence without the information being revealed to a third party. However, not all confidential information would attract legal privilege, unless all the elements legal professional privilege are met. Criminal act of communication which are made for the furtherance of crime are not protected by legal professional privilege. [5]These rules are strict, and the criteria prevents loopholes to offenders who might want to take advantage of legal advice privilege to withhold information or documents that could otherwise be disclosed.

When a client is charged with an offence, whether they have offended or not, they would, in most cases, seek the assistance of a barrister either directly or through professional clients (solicitors). In the process of legal advice, a relationship is created, and confidentiality and legal privilege is established which has a positive effect on the client. However, it is imperative that, while maintaining legal privilege, careful consideration should be taken by the barrister not to mislead the court.

The information that the client wishes to communicate cannot be disclosed to a third party. The lawyer would not be able to waive the privilege on his own interest, therefore confidentiality and privilege ought to be maintained.[6] Legal advice privilege also protects the client’s communication, which he has had in confidence even if the barrister ceases from acting and does not continue to represent the client.

1] Archbold Criminal Pleading Evidence and Practice 2023 Ed Chapter 12. Part 1 Privilege- Section C. Legal Professional Privilege (1) The nature of legal professional privilege Case law -R v Derby Magistrates’ Court Ex p. B [1996] 1 Cr. App R. 385, HL

[2]Three Rivers District Council v Governor and Company of the Bank of England (No6) [2004] UKHL 48 at [38], [2005] 1 AC 610.

[3]R (on the application of Jet2.com Ltd) v Civil Aviation Authority (Law Society of England and Wales intervening) [2020] EWCA Civ 35 at [96], [ 2 WLR 12152020]

[3]The law of Legal Services and Practice – Chapter 8 Fiduciary and other duties – Legal professional privilege – The nature of privilege - 8.156

[5]Archbold Criminal Pleading Evidence and Practice 2023 Ed Chapter 12 Part 1. Privilege Section C Legal Professional Privilege (2) Communication in furtherance of crime 12-12

[6]The law of legal services and practice –– chapter 8 fiduciary and other duties - Legal professional privilege – The nature of privilege – 8.180

This article is not for educational purposes 

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