New legal privilege guidance for in-house lawyers in England

The SRA’s legal privilege guidance for in-house lawyers aims to help businesses and their in-house legal teams navigate key issues concerning the scope of privilege in the in-house context, which the regulator says is more complex than in private practice, as shown in case law. The SRA is the regulatory body for solicitors in England and Wales.

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Legal professional privilege, where it applies, provides a basis for withholding documents from disclosure to opponents in litigation and other third parties such as regulators. Legal professional privilege in England and Wales takes two forms. First, legal advice privilege, which attaches to confidential communications between a lawyer and their client for the dominant purpose of giving and seeking legal advice. Second, litigation privilege, which covers confidential communications whose dominant purpose is to obtain information or advice in connection with the conduct of ongoing, pending or “reasonably contemplated” litigation. Whilst there are some differences in particular, but limited, circumstances, the law in Scotland is largely the same as that in England and Wales on this.

The SRA guidance suggests that in-house lawyers should consider several important issues to ensure, as far as possible, that privilege attaches to appropriate communications with the organisations that they work for as their clients. These include: identifying the client in relation to any given instructions; understanding what communications attract privilege, particularly where the in-house lawyer’s role and communications can mix legal and commercial elements; and knowing when privilege can be lost or never existed. It is important to remember that for the purposes of legal advice privilege, the identity of the client must be carefully considered.  The term has been narrowly defined and, in the context of an organisation, will only cover relevant communications with those within the organisation authorised to seek or receive legal advice in relation to that particular matter.

The guidance also touches on steps in-house lawyers can take to report wrongdoing within their organisations and when organisations are seeking to withhold material that is not privileged.

Pinsent Masons regulatory expert Fiona Cameron said that the guidance is a useful overview of legal professional privilege, which can be “fraught with difficulty at the best of times but even more so for in-house lawyers”.

“This is particularly so where their role extends beyond the purely legal, to include commercial or strategic decision-making, and the protection of legal advice privilege is sought. In that case the role of lawyer, the identity of the client and the nature of the advice given are crucial. In-house lawyers must always be alive to the requirements for the protection of privilege and whether in each particular case those conditions can be met,” she said.

Wider organisational training on privilege is also recommended, she added, as this will help avoid the misconception that simply copying a lawyer into communications gives them privilege protection, a scenario particularly prevalent in-house.

Emilie Jones, a litigation expert at Pinsent Masons, said that the SRA guidance contains some useful practical steps which businesses can consider taking to help maximise the chances of being able to successfully assert privilege over appropriate communications with their in-house legal teams.

For example, the guidance suggests that, for the purposes of identifying the “client” to determine if legal advice privilege attaches to their communications, in-house lawyers should consider putting in place, and maintaining, a system to record who is generally authorised to seek and receive legal advice on matters within the organisation. Another idea suggested in the guidance is to develop a request form that asks anyone seeking legal advice from the in-house team to confirm that they are authorised to do so. 

“Such a form could also encourage those completing it to make clear the legal nature of the advice sought, and include other reminders such as about appropriate labelling of privileged communications and the importance of limiting their dissemination,” said Jones.

The SRA also suggests putting in place special arrangements for specific matters or projects, such as an internal investigation, to designate who is specifically authorised to seek and receive legal advice on that matter. 

“While there is no one-size-fits-all approach, and systems and protocols will have to be adapted to suit the particular business, this is valuable practical guidance,” she said.

Jones added, however, that when dealing with cross-border matters, additional care is needed: “The SRA’s guidance focuses on the position under English law. However, a number of other jurisdictions and regimes do not recognise privilege for in-house lawyers’ communications. In matters which have or may have an international element, it is always important to think at the outset about the different rules which may apply on privilege, or other jurisdictions’ equivalent concepts such as professional secrecy, and how to structure communications accordingly.”

The SRA’s privilege guidance is part of a wider suite of in-house guidance issued by the SRA, to support over 34,500 lawyers working in-house across England and Wales. The series also includes internal investigations guidance and material for businesses employing in-house lawyers on the expectations and obligations of those lawyers. The publication of this suite of guidance follows consultation with the in-house community earlier this year and a thematic review by the SRA of in-house practice last year.