Does the protection afforded by ‘legal advice privilege’ in England and Wales extend to any advisory bodies outside the traditional legal profession?
The simple and clear answer of the UK’s Supreme Court in a decision published in January 2013 (R (on the application of Prudential plc) v Special Commissioner of Income Tax (23 January 2013)), is that it does not.
What then is ‘legal advice privilege’ and why does this issue matter? Put simply, legal advice privilege operates to protect the content of legal advice which is given by a lawyer to their client from eventual disclosure. The underlying purpose is to facilitate access to a lawyer’s professional skill and judgement so the client can seek strategic legal advice on a situation which has legal implications without having to worry about it ever being disclosed.
Advice which is provided by bodies outside the legal profession, however, is not protected, even where it makes sense for it to remain confidential. In the case of Prudential, the company had sought advice from their accountants in connection with tax avoidance. Since the advice received was not privileged, Prudential were eventually required to disclose it.
It was acknowledged by the judges in the Prudential case that we now live in a world where strategic advice is sought from many quarters outside the traditional legal profession. However, despite this reality, there are no plans to extend the scope of the principle. It is sensible to be conscious of the issues which could arise when seeking legal advice from a non-lawyer, particularly where the advice being sought is on a subject of sensitive nature.
We are frequently asked by clients to advise on redundancy selection, for example. It is not uncommon, when discussing the process, for our clients to express concerns about consulting with certain individuals. In these circumstances we are able to provide a practical, strategic steer and to subsequently summarise the various options. Were our clients to have sought the same advice from a non-legally qualified person, and were litigation to follow as a result of any redundancy dismissal, all records of the advice relating to the process, however set out, would not be protected by privilege. It would be open to disclosure and the employee and their advisor would have access to this information.
With these risks one has to question the depth of advice provided by organisations who know that anything they commit to may be disclosed at a later stage. One way round the problem may be for them to offer more generic guidance, which, while not incorrect, is simply not fit for purpose.
With the difficulties apparent, below are some practical tips on seeking legal advice:
Know your adviser
Legal advice privilege does not, in England and Wales, extend beyond the traditional professions of solicitor, barrister and chartered legal executive. This includes in-house lawyers and foreign lawyers. It does not extend to a person who has studied or has a degree in law without having gained the professional qualification.
Legal advice privilege does not extend to other professionals including the advice of accountants, tax advisors, human resources consultants, mentoring and support services, business consultants and health and safety consultants. If you are seeking legal advice from any organisations outside the legal profession, check first that the advisor you speak to is legally qualified.
Be selective on where advice is sought
When planning projects such as, for example, the restructure of a department or organisation, which could have significant legal consequences, and where absolute confidentiality is required, take advice from a legally qualified professional, that being a solicitor or barrister registered with the law society.
If advice is sought from multiple sources co-ordinate it through a legally qualified solicitor
Legally qualified professionals are used to co-ordinating large scale projects often involving a number of external agencies. We frequently work alongside human resources consultants, health and safety executives, accountants, and financial advisors, some of whom carry out internal investigations on behalf of our clients. On occasions where legal advice is required following the results of an audit or investigation by one of these professionals on a sensitive matter, put it to a qualified solicitor. Advice sought on sensitive matters such as whether or not to discipline an employee, for example, will not be privileged unless it is provided by a qualified lawyer.
In the Prudential case Lord Neuberger, in his judgment, acknowledged that there is “a strong case in logic’ for the expansion of privilege to cover a wider field of professional advisers.” However, he held that it was preferable, in the interests of certainty, for privilege to retain its traditional boundaries. Any expansion of the principle should be a matter for Parliament, and not the courts and there are no immediate plans for reform of this principle.