A guide to privilege for in-house lawyers
A guide to privilege for in-house lawyers

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • A guide to privilege for in-house lawyers
  • What is privilege?
  • More about legal professional privilege
  • The fraud exception
  • The EU position on in-house lawyers’ privilege
  • How to avoid waiving or losing privilege
  • So what should I do to maximise the protection of legal professional privilege?

What is privilege?

The core aim of privilege is to protect the confidentiality of communications between clients and their lawyers. Note that the right belongs to the client and not to the lawyer.

Privilege entitles a party (or their successor in title) to withhold evidence from production to a third party or the court. Once a document is privileged it will always be privileged, subject to inadvertent disclosure or waiver by the client. Consequently, a privileged document in one action cannot be used in a subsequent action even though it is relevant. However, it is important to be aware that privilege may be lost by the document entering the public domain, eg by it being read to or by the court or by it being referred to in a public hearing.

The various forms of privilege are:

  1. legal professional privilege, which includes legal advice privilege and litigation privilege

  2. joint privilege

  3. common interest privilege

  4. privilege against self-incrimination

In most cases, the in-house lawyer will be most concerned with legal professional privilege, although privilege against self-incrimination could help if an in-house lawyer were asked to disclose the details of oral advice they had provided.

More about legal professional privilege

Legal advice privilege protects from inspection confidential communications between A (the client) and B (the professional legal advisor or in-house lawyer) for the sole