Legal Advice Privilege And Foreign Lawyers

Published date15 September 2020
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Employment Litigation/ Tribunals, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
Law FirmAkin Gump Strauss Hauer & Feld LLP
AuthorMr Kambiz Larizadeh, Aimee Smart and Mouna Moussaoui


In this alert, we consider a recent judgment of the English High Court on legal advice privilege with respect to foreign in-house lawyers, particularly in the context of non-'Advocate' Russian in-house lawyers.

Legal Advice Privilege

Under English law, legal advice privilege applies to confidential communications between a client and their lawyer for the purpose of giving or receiving legal advice or assistance in a relevant legal context.

It is settled law that legal advice privilege (and indeed, litigation privilege) will extend to foreign lawyers provided the above conditions are met.

It is also settled law that the English courts will apply the lex fori (i.e., the law of the forum) to questions of privilege. This will be the case, for example, even if foreign law governs the claim or the relevant communications take place in a foreign jurisdiction. In other words, provided the English courts have jurisdiction over the claim, English law will govern questions of privilege.

PJSC Tatneft v Bogolyubov & others [2020] EWHC 2437 (Comm)


The judgment arises from a claim brought by PJSC Tatneft ('Tatneft') against four high-net worth individuals for their alleged involvement in a fraudulent scheme. That claim is governed by Russian law.

The judgment arises out of an application by the Second Defendant in those proceedings challenging Tatneft's claim to privilege over certain of its internal communications. Tatneft gave standard disclosure and asserted, among other things, legal advice privilege over certain categories of documents, thus withholding those from inspection.

Tatneft confirmed in correspondence that its claim to legal advice privilege covered communications between its employees/officers and members of its internal legal department. Importantly in the context of this judgment, Tatneft also confirmed that the members of its internal legal department were qualified Russian lawyers but did not have the status of 'Advocate' in Russia (explained further below).

The Second Defendant brought an application on the basis that legal advice privilege should not extend to communications with or documents generated by any in-house Russian legal advisors who are not Advocates.

The Parties' Submissions

The Second Defendant submitted that the Court should be concerned with the 'status' of the 'lawyer,' not just their function. In particular, it was submitted that, under English law, legal advice privilege only applies to:

  • 'Professional...

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