"Advocacy is qualified legalassistanceprovidedon a professional basis by persons who received the status of advocate… to physical and legal persons for thepurpose of advocating their rights, freedomsand interests, and ensuring their access to justice."

Chapter 1, art.1 of Federal Law ¹ 63-FZ "On Advocacy and the Bar in the Russian Federation"

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Legal professional privilege - issues for lawyers and clients

The definition of the 'client' for the purposes of legal advice privilege is important. Essentially, not all employees of an organisation will be deemed to be the 'client' and legal advice privilege will generally only attach to the lawyer's communications with those employees who have authority to instruct lawyers. On receiving instructions, it is always worth establishing who the 'client' is: too wide a definition may be seen as artificial by a court should a problem arise; too narrow a definition may be unworkable in practice.

Legal advice privilege covers advice from solicitors, barristers, in-house lawyers and foreign lawyers. With regard to paralegals, trainees and legal executives, as long as they are properly supervised in accordance with Law Society requirements, it is likely that their work will also attract legal professional privilege.

The scope of who is regarded as a lawyer for the purposes of giving legal advice was considered in the 2009 case Prudential Plc, R (on the application of) v Special Commissioner of Income Tax.(1) It was proposed that legal advice privilege should extend to legal advice given by an accountant. However, the proposition was rejected by the court on the grounds that:

  • clients have not generally been dissuaded from seeking such advice from accountants even though legal advice privilege has not been available;
  • the view that a need for confidentiality is vital for full and frank disclosure when dealing with professional advisers has not led to calls by non-lawyers and their clients for a general right of professional advice privilege; and

in many cases, confidentiality can be preserved on the grounds that the material to be disclosed is not relevant.(2)

As noted above, legal advice privilege extends to advice from in-house lawyers. However, where there is a potential competition element to the issue at hand, the position is different, as recently confirmed in Akzo Nobel.(3) In this case, the European Court of Justice held that legal professional privilege did not cover exchanges between a company and its in-house lawyers, in the context of a competition investigation by the European Commission. Although the court's decision does not affect the English law position on privilege, in-house lawyers need to be aware that the privilege which they enjoy before the English courts would not survive such an investigation by the European Commission.

Legal professional privilege looks set to be a hot topic as Prudential was heard by the Court of Appeal in July 2010 and judgment is expected to be given in October. Both the Law Society and the Institute of Chartered Accountants of England and Wales (ICAEW) were granted leave to intervene in this case. The ICAEW submitted that legal professional privilege should be extended to the clients of chartered accountants who receive tax advice. However, the Law Society argued that extending the boundaries of legal professional privilege risked creating uncertainty over what fell within its ambit, and that any extension should be the subject of consideration by parliament and, if necessary, legislation. The Law Society also pointed to the fact that the concept of legal professional privilege has been and remains closely tied to the administration of justice and the duty of a solicitor of the court.

For these reasons, the Court of Appeal's judgment has the scope to change radically the concept of legal professional privilege from one historically associated with the legal profession to a rule which attaches because of the purpose and nature of a piece of advice.

 



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