It’s well-established that legal advice privilege applies to confidential communications between lawyers and their client, in connection with obtaining or seeking legal advice, with the consequence that those communications are not disclosable to others, such as in subsequent litigation.
The difficulty for companies and other organisations has been that, in the Three Rivers (No. 5) case, the Court of Appeal held in that the definition of “client” does not include all employees of a corporate entity. Accordingly, only communications between lawyers and employees specifically authorised to seek legal advice will be privileged.
This narrow scope of legal advice privilege (as distinct from the wider scope of litigation privilege, where litigation is contemplated) was considered further by the High Court in the case of Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) v Sandoz Ltd  EWHC 2747 (Ch). In this case, the communications in question comprised:
- an internal email from an in-house lawyer requesting information to send to external lawyers; and
- an employee’s response to that request.
The purpose of these communications was for the in-house lawyer to gather information in order to obtain legal advice from external lawyers, rather than for the in-house lawyer to provide legal advice to the employee. Consequently, the court held that the emails were not privileged.
The fact that the employee generally had authority to instruct lawyers, where necessary to perform his duties, was irrelevant; instead, emphasis was placed on the purpose of the communications. Interestingly, there were other emails between the same in-house lawyer and employee that did attract legal advice privilege, as the purpose for those emails was for the in-house lawyer to give legal advice to the employee.
Clarion comment - practical considerations and tips
For organisations and their in-house lawyers involved in an internal investigation, the decision in the Glaxo Wellcome case is important as it underlines the need to consider, in any given context, precisely who is the lawyer’s “client” for that particular purpose and who is the client’s lawyer.
In order to maximise the possibility of attracting privilege over documents generated during any internal investigation or fact-finding exercise, organisations should therefore consider the following from the outset:
- Who is the lawyer who will be instructed to give legal advice and who are the employees of the organisation who have authority to seek and obtain legal advice (as only communications with those employees will attract legal advice privilege)?
- Non-lawyer employees, experts or advisors should not conduct any investigation before taking proper legal advice. It is likely, that any documents created by non-lawyers will be disclosable in any future legal proceedings.
- Documents produced should ideally interweave legal analysis and advice along with factual matters and they should be headed “privileged and confidential”.
If your organisation is about to conduct any fact-finding or investigation and you wish to protect and preserve any potential entitlement to legal advice privilege (or litigation privilege) during that process, please do not hesitate to contact David Williams or any member of Clarion’s Commercial Dispute Resolution Team
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