by James Severn & Jamie Cawthorn
As UK regulators have taken a more aggressive stance to corporate wrongdoing, the internal investigation has become an important tool for a company to understand the issues it is facing and how to combat them. Carried out thoroughly and responsibly, the investigative process is often productive. However, it can also produce sensitive material a company would prefer was not available to a regulator, the public or a client. In some circumstances, privilege can mean that the material need not be disclosed.
What is Legal Professional Privilege?
Privilege allows a party to withhold evidence from production to a third party or the Court. Legal Professional Privilege (“LPP”) is comprised of legal advice privilege and litigation privilege. Legal advice privilege protects communications between client and lawyer in confidence for the purpose of giving or obtaining legal advice. Litigation privilege protects confidential communications between client and lawyer or between either of them and a third party, where the dominant purpose of the document is litigation that is in contemplation or has commenced.
LPP: the difficulties
Who is the client?
It has been held that the “client” is the small group of employees charged with instructing the lawyers; information provided by employees outside this group is not covered by legal advice privilege and could be disclosable.
What constitutes legal advice?
In a recent case it was held that legal advice privilege does not extend to documents produced to allow legal advice to be sought. For example, notes of interviews with current and former employees as part of an internal investigation by in-house and external lawyers are not privileged.
What is litigation?
Litigation privilege does not extend to documents created for the purpose of obtaining advice about how to avoid litigation. The Court held that a company could not rely on privilege to prevent the results of its internal investigation into fraud and bribery being handed over to the SFO.
Some communications from an in-house lawyer will attract privilege, but it is likely that those concerning business advice or administrative work will not. Confusion could result in loss of privilege of the whole document.
A belated attempt to cast a cloak of privilege is less likely to succeed than if privilege is considered at the outset. Taking steps to preserve privilege at the start of an investigation will help avoid the requirement to disclose sensitive material at a later date.
If you have any questions about any of the issues raised in this article, please contact James Severn, whose details appear below.