Legal Advice Privilege vs Litigation Privilege What Is the Difference?
Speaking to a solicitor does not automatically make everything you say, send, or create legally privileged. Certain rules must be met before information receives this protection. During a criminal investigation, understanding those rules can help protect sensitive information as well as your defence strategy.
What is Legal Professional Privilege?
Legal professional privilege protects certain confidential communications and documents from having to be disclosed. In the UK and elsewhere, this is an important part of the relationship between a lawyer and their client.
Under English law, legal professional privilege has two main forms: legal advice privilege and litigation privilege. You may also hear the term solicitor client privilege, especially in material influenced by US law. However, in England and Wales, legal professional privilege is the broader legal concept.
While both forms can protect sensitive information, the protection does not apply to every communication involving a lawyer. A document does not become privileged simply because it is private or sensitive. It must meet the legal rules for one of the types of privilege.
The same applies when a solicitor is involved. Copying a lawyer into an email, for example, does not automatically turn an ordinary conversation into privileged material.
What is Legal Advice Privilege?
Legal advice privilege generally protects confidential communications between a lawyer and their client. That said, the communication must be part of giving or obtaining legal advice.
For example, imagine you are under criminal investigation. You email your solicitor to ask how you should respond to a request from the police. Your solicitor then replies with advice about your legal position and what to do next. These communications may be protected by legal advice privilege.
The protection can also apply to communications that form part of the wider process of seeking and receiving legal advice.
However, simply sending an existing document to your solicitor does not make that document privileged. The purpose and relevant legal context still matter.
This distinction is particularly important for businesses. During a company-wide investigation, it may be necessary to decide which employees are part of the client group and can communicate with lawyers. An email from another employee is not automatically privileged just because it relates to the same investigation.
When multiple parties are involved, it is important to think carefully about who communicates with external or in-house lawyers and how sensitive information is shared.
What is Litigation Privilege?
Litigation privilege is broader than advice privilege in some important ways. It can protect certain confidential communications involving lawyers, clients, and third parties. It can also protect some documents created because of actual or contemplated litigation.
For example, a solicitor may need an expert to examine evidence and give an opinion for a case. If certain legal requirements are met, communications with that expert may be protected by litigation privilege.
One such requirement is that litigation must either already be taking place or be reasonably contemplated. In simple terms, there must be a real prospect of legal proceedings. A vague concern that a dispute might happen at some point is unlikely to be enough.
The sole or dominant purpose of the communication or document also matters. This means its main purpose must relate to preparing for or dealing with the litigation. Examples could include obtaining legal advice, collecting evidence, or preparing the case.
This does not mean every document created after an investigation starts becomes a privileged document. The reason the document was created is still important.
Legal Advice Privilege vs Litigation Privilege: What is the Main Difference?
The main difference between legal advice privilege vs litigation privilege is who can be involved and why the communication or document was created.
Legal advice privilege mainly protects confidential communications between lawyers and their clients. The purpose must be to give or obtain legal advice. However, litigation does not need to have started or even be expected.
Litigation privilege can cover a wider range of people. For example, it may protect some communications with experts and witnesses. However, litigation must already be taking place or be reasonably contemplated.
Neither type of privilege protects information just because the client considers it sensitive. The people involved, the purpose of the communication, and the circumstances in which it was created are all critical.
When Can Legal Privilege Be Lost or Waived?
Privileged information needs to be handled carefully. Even if a communication is protected when it is created, privilege can still be lost in some circumstances.
One of the main risks is sharing the information with other people.
For example, a client might forward legal advice to an employee, consultant, PR adviser, or another professional. This can raise questions about whether the communication remains confidential or whether there has been a waiver of privilege.
The same issue can arise with privileged documents. Sending them to people who do not need to receive them may put their protection at risk.
Legal professional privilege belongs to the client. This means clients need to be careful when deciding whether to disclose or share privileged material. It is also important not to assume that everyone helping with a case can freely receive privileged information.
Always make sure to get advice from your solicitor before circulating sensitive legal material.
Why Does Privilege Matter During a Criminal Investigation?
Privilege can be especially important during the early stages of a criminal investigation.
Before charge, a person may be preparing for a police interview, gathering evidence, and discussing their position with their solicitor. They may also need help from experts, accountants, employers or other advisers.
But each new person involved can create questions about how information should be handled.
The position can be even more complex for a business. An internal investigation might involve directors, employees, compliance teams, accountants, in-house lawyers and outside solicitors. Not every communication between these people will automatically be protected.
Protecting Privilege During an Investigation
Legal professional privilege protects confidential communications only when the relevant rules are met. It is therefore important to think about privilege before creating documents or sharing sensitive information.
Early legal advice can help clients communicate safely, understand which documents may be privileged, and decide who should have access to privileged information.
Does Privilege Apply to Communications with Foreign Lawyers?
It is not uncommon for investigations to cross borders, but whether legal professional privilege applies will depend on the circumstances. Different countries can have different rules on which communications are protected and when privilege applies.
This means sensitive communications involving foreign lawyers should not automatically be assumed to be privileged, particularly where information is being shared with several people across different countries.
If foreign lawyers are involved in an investigation, it is important to seek legal advice before sharing sensitive material. This can help establish whether privilege applies and how information should be handled to protect confidentiality.
How Holborn Adams Can Help Protect Privileged Information
At Holborn Adams, we consider legal professional privilege from the very start of a criminal investigation.
Our lawyers can assess whether legal advice privilege or litigation privilege may apply and advise on how sensitive communications and privileged documents should be handled. Where experts, employees or other advisers are involved, we can also help control who has access to privileged information.
If you are concerned about legal privilege during a criminal investigation, contact Holborn Adams today. Taking legal advice early can help protect confidential communications throughout your case.
Frequently Asked Questions
What is legal professional privilege?
Legal professional privilege protects certain confidential communications and documents from having to be disclosed. Under English law, there are two main types: legal advice privilege and litigation privilege. Whether something is protected depends on who was involved, why it was created and whether it remained confidential.
What is the difference between legal advice privilege and litigation privilege?
Legal advice privilege mainly protects confidential communications between a lawyer and their client for the purpose of legal advice. Litigation privilege can cover some communications with third parties. However, litigation must be underway or reasonably contemplated, and the material must meet the relevant purpose test.
Can litigation privilege apply before court proceedings start?
Yes. Litigation privilege can apply before court proceedings begin if litigation is reasonably contemplated. The communication or document must also have been created for the sole or dominant purpose of dealing with that litigation, such as obtaining legal advice or gathering evidence.
Does copying a solicitor into an email make it privileged?
No. Copying a solicitor into an email does not automatically make it privileged. The communication still needs to meet the rules for legal advice privilege or litigation privilege. Adding a lawyer to an ordinary business or personal email is not enough.
Who does legal professional privilege belong to?
Legal professional privilege belongs to the client. This means clients should get legal advice before sharing protected material or taking any step that could result in a waiver of privilege.
Can privilege be lost by sharing legal advice?
Yes. Privilege can be lost in some circumstances. Sharing protected legal advice or privileged documents with other people may lead to a waiver of privilege. The exact position depends on what was shared and why, so speak to your solicitor before disclosing sensitive legal material.
Does legal privilege apply to foreign lawyers?
It can, depending on the circumstances. Communications involving foreign lawyers may raise questions about which privilege rules apply, especially in cross-border investigations. If lawyers in more than one country are involved, get specialist advice before sharing confidential or privileged information.
Should privilege be considered before instructing an expert?
Yes. Privilege should be considered before an expert is instructed or sensitive documents are created. Litigation privilege may protect some expert communications, but the protection does not apply automatically. Early advice can help determine what information the expert needs and how it should be shared.
