Privilege—a guide for in-house banking and finance lawyers
Privilege—a guide for in-house banking and finance lawyers

The following Banking & Finance guidance note provides comprehensive and up to date legal information covering:

  • Privilege—a guide for in-house banking and finance lawyers
  • What is privilege?
  • When might issues of privilege arise in relation to banking and finance transactions?
  • What practical steps can be taken to deal with issues of privilege which may arise?
  • Future developments and keeping up to date

STOP PRESS: This Practice Note is being reviewed in light of the SRA’s regulatory reforms, in force from 25 November 2019. For further guidance, see: SRA reforms 2019—overview.

This Practice Note explains the concept of privilege between clients and their lawyers from the perspective of an in-house lawyer. It is written for banking and finance lawyers working in banks or other financial institutions. It highlights where issues of privilege may arise for in-house banking and finance lawyers and practical steps which can be taken to deal with these.

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

  2. joint privilege

  3. common interest privilege, and

  4. privilege against