Does Legal Advice Privilege Apply To Foreign In-House Lawyers?

• Published date: 01 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Mr James Sidwell and Christopher Richards

In England and Wales, a party to litigation can generally assert legal advice privilege in communications with its lawyers. But what is the position when the communication is with in-house lawyers practising in another country, particularly where those lawyers would not benefit from privilege under that country's own laws? This was the situation the Commercial Court considered in PJSC Tatneft v Bogolyubov and Others [2020] EWHC 2437 (Comm).

Legal advice privilege

In very broad terms, legal advice privilege applies to communications between a lawyer and client for the dominant purpose of giving or receiving legal advice. These privileged communications can be withheld from an opponent in civil litigation in England and Wales. It is well established that legal advice privilege applies to foreign lawyers and to in-house lawyers in England and Wales.

In many other jurisdictions though, communications with an in-house lawyer are not afforded the same protection as those with an external lawyer, because the in-house lawyer is not seen to be independent of the organisation that employs them. Indeed, there are certain overlap situations where this position also affects in-house lawyers practising in England and Wales. For example, although communications with an in-house lawyer in England and Wales will generally be privileged in civil litigation in this jurisdiction, they are not protected from disclosure in an EU Competition investigation.

Background to the case

In these proceedings, the Russian claimant company claimed legal advice privilege for communications between its internal legal department and other employees.

The second defendant challenged this claim to privilege on the basis that:

• The claimant's in-house legal advisers practised in Russia;
• The Russian legal system distinguishes between independent, self-employed "advocates" and employed in-house lawyers;
• In Russia there is a concept of advocate's secrecy (which was said to be similar to legal professional privilege) - but it applies only to advocates, not to in-house lawyers;
• As a matter of Russian law, the claimant's in-house lawyers could not therefore claim "advocate's secrecy" in the advice they gave to the claimant; and
• Accordingly the in-house lawyers were not "appropriately qualified" foreign lawyers who could properly claim legal advice privilege in England.

Foreign lawyers

The Court considered the defendant's submission that the claimant's lawyers were not "appropriately qualified"...