Practical Steps to Preserve Legal
Professional Privilege – LPP
If legal advice is required, instruct lawyers (whether
external or in-house) as soon as possible in order to
maximise the protection afforded by LPP.
Who is a lawyer?
LPP applies to advice given by solicitors and barristers
and this includes in-house counsel provided that they
are acting in their professional capacity i.e. not in an
executive or compliance capacity and subject to the
competition law exception referred to below.
LPP does not generally extend to other professionals
such as accountants and tax advisers.
Check whether the lawyer is qualified
Check whether lawyers in the in-house legal
department are qualified lawyers. Documents created
by paralegals, legal executives and trainees may not
benefit from privilege unless they are supervised
by a qualified lawyer. Holding practising certificates
can demonstrate that in-house counsel are acting in
professional legal capacity and have the necessary
independence from the organisation.
Akzo Nobel Chemicals Limited v The
European Commission
There is an important exception concerning in-house
counsel wherein Akzo Nobel Chemicals Limited v
The European Commission [2010] 5 CMLR9, the ECJ
ruled that communications between in-house lawyers
and other employees are not privileged in relation
to competition law investigations by the European
Commission.
Dublin, London
& New York
Establish who the “client” is within the
company
Establish who the client is at the earliest stage
possible. The client should be those employees
and officers of the company expressly tasked with
obtaining legal advice from either external or in-house
lawyers.
Detail who the client is in the letter of instruction/
terms of engagement letter with the external lawyer
and only include key decision makers. The list of
names can be revised, as required. Only the “client”
should prepare briefing notes, letters of instruction,
meeting agendas etc.
Restrict circulation of legal advice/legal
communications to the client only
Restrict the circulation of legal advice and legal
communications to the “client employees” only.
In-house counsel should separate their
legal and non-legal function
In-house counsel should keep legal and non-legal
roles/advice as separate as possible. This will
minimise the risk of the legal purpose of a document
not being the dominant one where it includes both
legal and business advice.
State the dominant purpose of the advice
in the document
It is helpful but not conclusive to specifically state the
dominant purpose of a document in that document
e.g. that it is a request for legal advice.
Commercial Litigation
Instruct lawyers
Label documents
Discussion of privileged documents
Written communications involving legal advice
should be marked “privileged and confidential” and/
or “communication for the sole purpose of providing
legal advice”. Although this is not conclusive in terms
of establishing privilege, it can be helpful in doing so.
It should also make it clearer to recipients that the
relevant document is privileged and should therefore
not be shared or re-sent.
Discourage any analysis or discussion of legal advice
in written memoranda, minutes of meetings or in any
other documents. Do not make manuscript notes
on privileged documents as such notes may not be
privileged. Where legal advice must be discussed
internally, for example at a board meeting, prepare
two separate sets of minutes, one containing
legal issues and their consequences and the other
containing any commercial issues.
Keep the document confidential
Every privileged document must be confidential
and privilege will be lost if the document loses
confidentiality. It is therefore critical not to do anything
inconsistent with the confidentiality of the document
as this could inadvertently waive privilege. Circulate
advice received from external lawyers only to the
extent necessary and in its original form, without
amendment, as otherwise privilege may be lost.
Recipients should also be warned of the confidential
nature of documents and that they should not be
re-sent internally or shared with third parties. If
documents are shared with a third party, consider
entering into a confidentiality agreement with
that party.
Emails
Consider the content of emails before forwarding on
to recipients. If the email/email chain contains legal
advice, send a separate email and do not continue the
email chain. Be aware that an email often results in
the unintended widespread distribution of information.
Be careful what you write
Agree an internal structure within the company to
minimise the creation of non-privileged documents.
Any particularly sensitive information should not be
communicated in or recorded in writing and should be
dealt with by way of oral communication. Keep nonprivileged material as factual as possible and do not
include information/detail that would be damaging, if
disclosed.
Document Management Policy
Do not retain legally privileged documents on a shared
network system or where they can be accessed
by any employee. Retain privileged documents in
a separate folder clearly marked “privileged and
confidential”.
For further
information,
please contact
one of our team:
Maurice Phelan
Paul Convery
Jane Pilkington
Tanya Colbert
Partner, Head of
Commercial Litigation
Partner,
Commercial Litigation
Partner,
Commercial Litigation
Partner,
Commercial Litigation
t +353 1 614 5083
e [email protected]
t +353 1 614 5203
e [email protected]
t +353 1 614 5033
e [email protected]
t +353 1 614 5026
e [email protected]
MHC.ie
Dublin
London
New York
t +353 1 614 5000
e [email protected]
t +44 20 3178 3366
e [email protected]
t +1 646 862 2028
e [email protected]
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United Kingdom
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The contents of this publication are to assist access to information and do not constitute legal or other advice. Readers should obtain their own legal and other advice as may be required.
© Copyright 2015 Mason Hayes & Curran.
September 2015.