by Raffi Varoujian

Created on: August 05, 2011   Last Updated: August 09, 2011

It is a fundamental principle of the English legal system that a client should be able to freely discuss all matters relating to a case with their lawyers, without the fear that any such disclosures will be used against them at a later date. The complexity of the law and the training required to interpret and apply it means that most ordinary people need to engage a lawyer to help them understand it. This makes privilege crucial to ensure that justice is done, and that clients can trust their lawyers.

Legal privilege, which has been a recognised part of the common law since the 16th Century, (and reinforced by subsequent case law since), applies to communications between clients and qualified legal professionals, including barristers and solicitors, whether they work in private practice or industry. It also applies to those on the fringes of the profession – such as Legal Executives and paralegals – provided that they are operating under the supervision of a lawyer.

In a recent Court of Appeal case, it was confirmed that similar privilege would not be extended to other professions , such as accountants providing tax advice. In contrast, a client seeking advice tax lawyer providing the same matter would be covered. The lawyer must be acting in a professional capacity, so it is doubtful that advice sought over a cocktail at a garden party (where the lawyer has no former relationship with the person asking) or from a friend who also happens to be a lawyer will attract the protection of legal privilege, as there is no “client” relationship.

The right belongs to the client, and only the client can waive it – an aspect recently highlighted in the phone hacking scandal in the UK, when quality of advice provided by law firm Harbottle & Lewis was publicly called into question, but they were unable to respond or defend themselves until clients, News International, allowed them to.

Legal privilege under English law falls into two general categories:

Advice privilege

This aspect covers communications between a lawyer and client which are confidential in nature and are conducted for the primary purpose of giving or receiving legal advice. The privilege will apply regardless of whether there is any actual or pending litigation. However, it is not absolute.

There are certain circumstances when a lawyer may be compelled to disclose otherwise privileged communications – i.e. when such information is known, or suspected to involve money-laundering

• 1
• 2
• Next Page >>