Privilege: What You Need To Know ThinkHouse Foundations (Video)

• Published date: 10 November 2020
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Joanna Rhodes and Tom Cox

Privilege can be something of a minefield to navigate and to maintain, particularly when in the throes of litigation. In this session, Joanna Rhodes discusses the main types of privilege as well as giving some hints and tips as to how it can best be managed within an organisation.

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Transcript

Joanna Rhodes: Good morning everyone, thank you for attending this session this morning and for spending your first morning of lockdown 2.0 with us. My name is Jo Rhodes and I am a Senior Associate in the firm's commercial litigation team. In terms of my practice, I do general corporate and commercial litigation and also quite a lot of domestic and international insolvency litigation, as well as fraud and asset tracing work.

Privilege, which I'm going to talk to you all about today, pervades through all of those types of work, through all types of litigation and actually beyond that into day to day practice. If it's accidentally waived, which can easily happen in an in-house environment, it can cause issues so is definitely worth thinking about and getting it right.

Privilege can be a tricky topic and I'm very conscious that we could spend hours talking about each aspect of privilege and debating the merits of various approaches and the views taken by the court over the last 20 years. I'm sure you're all much too busy for that though, so what I have tried to do instead is put together a practical overview of privilege in terms of how each type of privilege might apply to you, and some hints and tips as to how you might best manage and maintain it, alongside the business, in an in-house team.

There aren't any slides for this talk, but you might have seen there was a handout sent out with the joining instructions, so please feel free to follow along with that.

What is privilege?

So, taking it right back to basics, what is privilege? At the heart of it, privilege is a legal concept which entitles a party to withhold evidence from production to a third party or the court.

What that means in practical terms is that it acts as a shield to protect you from having to hand over difficult documents if you get into litigation. In the English courts, we have a cards on table approach, which means disclosure at a certain point. Onerous obligation because all documents even if difficult or commercially sensitive unless rely on privilege to protect them from being sent across.

Types of privilege

I'm first going to run through the types of privilege, with a brief overview of each one.

Legal advice privilege

This is the one most people probably think of when they think of privilege as a concept. A couple of examples of when legal advice privilege might kick in:

1. The business asks you for some advice on an agreement which they are considering entering into Generally, your advice on the terms of that agreement is going to be privileged.

2. Similarly, if you come to us and ask us to draft some documentation for you, our advice on that documentation is also likely to be privileged.

Legal advice privilege applies to confidential communications between lawyers and their clients made for the dominant purpose of seeking or giving legal advice. It protects legal advice, easy if you have got external legal advisors trickier for in-house counsel for some of the reasons I'll come on to at the moment.

So, to break that down:

• Requirement 1 Confidentiality

In most cases, confidentiality will automatically apply to legal advice privilege, because of the nature of the communications, i.e. between a lawyer and a client. But if you lose confidence, privilege will be lost.

You can usually share with business on terms of confidentiality, for example:

• You can disclose to board members in a board meeting, although ideally that advice wouldn't be recorded in board minutes if at all possible, because often those might need to be made public or circulated more widely and that would mean the confidentiality in the advice would be lost. There are ways around that though, so you might think about putting any advice in a confidential appendix to the board minutes so confidentiality in it can be maintained if the board minutes themselves are made public.

• Generally an employer can disclose with employees if they need it for the purposes of their work without loss of privilege.

Everything will be taken on a case by case basis, these are just guiding principles.

Generally speaking, the bigger circulation the bigger the risk of losing confidence and then it's got to be disclosed. Generally, to maintain confidentiality the circle to whom it's circulated should be kept as small as possible.

It does mean that, for example, anything passing between either party and an opposing party cannot attract privilege, even if it reveals the sort of advice that's been given, because the confidentiality is lost. Worth noting that includes notes taken of calls between lawyers won't be privileged, unless for example you've annotated it as advice.

• Requirement 2 Communications

Although this is the word used in most standard definitions of legal advice privilege, it's a bit...