Legal professional privilege—what it means for in-house lawyers and the organisations they advise
Produced in partnership with Peter Ratliff of 6KBW College Hill
Legal professional privilege—what it means for in-house lawyers and the organisations they advise

The following Risk & Compliance guidance note Produced in partnership with Peter Ratliff of 6KBW College Hill provides comprehensive and up to date legal information covering:

  • Legal professional privilege—what it means for in-house lawyers and the organisations they advise
  • What is legal professional privilege?
  • Legal advice privilege
  • Litigation privilege
  • Communications regarding settlement
  • Internal corporate communications
  • Common interest privilege
  • Without prejudice communications
  • Waiver
  • Loss of privilege
  • more

This Practice Note explains what legal professional privilege (LPP) is, including loss and waiver of LPP, summarises key case law and outlines LPP issues in other jurisdictions.

It is important to note that while aspects of the law on privilege are untested and open to academic debate, for in-house lawyers the question of whether privilege applies will typically be answered by the practical application of core principles and professional judgement.

What is legal professional privilege?

LPP protects the confidentiality of written and oral communications between lawyers and clients. It entitles a party to withhold evidence from production to a third party or court.

Legal advice privilege (LAP) and litigation privilege are distinct forms of LPP.

Legal advice privilege

LAP enables clients to put complete confidence in their lawyer. It applies to communications made in confidence, between lawyer and client, for the purpose of giving or receiving legal advice.

The burden of proving an entitlement to legal advice privilege is on the party claiming the privilege.

There are four essential elements; all of which must exist for LAP to apply:

  1. legal advice

  2. confidentiality

  3. lawyer

  4. client

Legal advice

Legal advice covers telling clients the law, and advice as to what should prudently and sensibly be done in the relevant legal context.

Confidentiality

LAP cannot be claimed unless the evidence is confidential. A privileged document that has ceased