Internal investigations and legal professional privilege
Produced in partnership with Caroline Black and Noel Power of Dechert LLP
Internal investigations and legal professional privilege

The following Risk & Compliance guidance note Produced in partnership with Caroline Black and Noel Power of Dechert LLP provides comprehensive and up to date legal information covering:

  • Internal investigations and legal professional privilege
  • Types of legal professional privilege
  • Special cases
  • Case law
  • Tips for maintaining privilege
  • Challenges to a claim for privilege
  • Waiver of privilege

Legal professional privilege (LPP) protects documents from disclosure to third parties including government agencies, regulators and claimants in civil proceedings. It is important to ensure you preserve legal professional privilege wherever possible when conducting internal investigations. For guidance on maintaining privilege during criminal investigations, see Practice Note: Maintaining privilege during criminal investigations.

Types of legal professional privilege

There are two types of LPP in England and Wales:

Legal advice privilege Litigation privilege
Protects confidential written or oral communications between a lawyer and a client for the purpose of giving or receiving legal advice and documents.
Advice from in-house lawyer will be covered provided it is given in the relevant legal context and relates to the legal part of their function (ie it is truly for the purpose of obtaining or giving legal advice). It is unlikely to be covered if it relates to their management, compliance and/or other broader functions.
For more guidance, see Practice Note: Legal professional privilege in civil proceedings—Legal advice privilege
Wider than legal advice privilege.
Protects confidential written or oral communications between a lawyer and client and/or third parties where litigation is contemplated or in train and the dominant purpose of those