Protect privilege without misleading the court

Privilege protects defined communications, not everything in a legal file. Legal professional privilegeGlossary termLegal professional privilege is the client's substantive right to withhold qualifying confidential material. It is not a discretionary favour to lawyers. In R v Special Commissioner, ex p Morgan Grenfell [2002] UKHL 21, the House of Lords addressed a demand for legal advice in a tax investigation and treated privilege as a fundamental right. Once it applies, a court does not simply balance it away because disclosure would be useful; statutory removal requires the proper clear legislative basis. Paras 7–8, 16 and 22.

Legal advice privilege. This protects confidential lawyer–client communications made for the dominant purpose of giving or obtaining legal advice. Litigation need not have begun or be anticipated. Identify who is communicating, their legal-adviser capacity, confidentiality and the purpose of the particular communication. Advice is not confined to quoting statutes; it includes legal advice about what prudently should be done in the relevant legal setting. Simply copying a lawyer into a commercial exchange does not make every part privileged. R (Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35, para 96, as applied in A v B [2020] EWHC 1492 (Ch), paras 4–12.

Litigation privilege. This can protect confidential communications involving client, lawyer and third parties where adversarial litigation is in progress or reasonably contemplated and the sole or dominant purpose is conducting that litigation, including obtaining advice or evidence for it. A bare possibility of litigation is not enough; nor is every routine investigation automatically litigation preparation. In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal rejected a universal requirement to wait until prosecution had been decided: criminal proceedings were reasonably contemplated on the actual facts. Legal work aimed at avoiding or settling reasonably contemplated proceedings can be protected, not only work defending them after issue. Paras 64, 91–102.

Existing facts and documents do not change character merely through delivery to a lawyer. A pre-existing commercial document does not become privileged just because a solicitor receives a copy. A new confidential request for legal advice about it may separately be privileged. Identify what is being requested: the underlying document, the legal advice, or a record revealing that advice. In A v B, board minutes and a risk register required examination of their actual content and legal purpose; lawyer involvement or a privilege label did not justify withholding all business material. The lawful response may be properly reasoned, limited redaction, not blanket concealment. A v B [2020] EWHC 1492 (Ch), paras 9–29.

Confidentiality is broader but different. Under SRA Code of Conduct, para 6.3, a solicitor must keep current and former clients' affairs confidential unless disclosure is required or permitted by law or the client consents. This duty of confidentialityGlossary termClient confidentiality applies more broadly than the defined privileged categories. Confidential business information may therefore be subject to a lawful disclosure obligation even though the solicitor must otherwise protect it. For a privileged communication, ordinary confidentiality exceptions must not be mistaken for an automatic power to defeat privilege. Analyse the actual legal power, client consent and scope before disclosure.

The client controls waiver. Privilege belongs to the client, not the solicitor. A lawyer cannot waive it merely to make an evidential dispute easier or explain an awkward professional decision. Obtain properly informed authority and consider the scope and consequences of any proposed disclosure. Equally, a witness's general compellability does not remove privilege over particular advice. The court must determine the properly raised claim rather than assume that a summons answers it. Morgan Grenfell, paras 7–8 and 22; CrimPR rr 17.5–17.6; SRA, Confidentiality of client information, “General — duty of confidentiality”.

Advice about past wrongdoing is not advice to commit wrongdoing. The iniquity principle prevents protection of communications made to further crime or fraud, rather than to obtain lawful legal advice. In the criminal search-and-seizure setting, PACE s 10(2) expressly excludes items held to further a criminal purpose from its legal-privilege definition. A client who confidentially admits a past offence in order to obtain lawful defence advice is not, for that reason alone, using the lawyer to further an offence. Contrast instructions to fabricate an alibi or use legal communications to carry out a fraud. Do not infer that every communication loses privilege because the client is accused of crime; identify the communication's purpose and the legal basis of the exception. SRA, Confidentiality of client information, “Preventing the commission of a criminal offence”.

Privilege does not authorise deception. A solicitor must not mislead the court by statement, omission or complicity, tamper with evidence, influence its substance improperly, or advance an assertion which is not properly arguable. A privileged admission can coexist with a not-guilty plea and proper testing of the prosecution case. The solicitor may challenge admissibility, expose genuine weaknesses and require proof. They must not invent an alibi, call evidence known to be fabricated or put a positive factual account known to be false. SRA Code of Conduct, paras 1.4 and 2.1–2.4.

Resolve the conflict without revealing the protected admission. Explain the limits of proper representation to the client. Distinguish a lawful challenge to whether the prosecution has proved its allegation from a knowingly false alternative story. If the client insists on the latter and proper representation cannot continue, the solicitor may need to cease acting, following the applicable procedural requirements without disclosing the privileged reason. A duty not to mislead is not a general permission to volunteer the client's confidential confession. SRA Code of Conduct, paras 1.4, 2.1–2.4 and 6.3.

Apply the case: Sports Direct: advice and its attachmentsKey caseSports Direct International plc v Financial Reporting Council[2020] EWCA Civ 177, paragraphs 58–62. A non-privileged pre-existing document does not become privileged merely by being attached to a privileged communication with a lawyer.