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

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

  • Privilege—a guide for in-house banking and finance lawyers
  • What is privilege?
  • Legal professional privilege
  • The EU position on in-house lawyers' 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?
  • How to avoid waiving or losing privilege
  • How to maximise the protection of legal professional privilege
  • Privilege in a regulatory context

This Practice Note explains at a high level 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.

Privilege is a complex topic and as such further reading is recommended. The following provide overviews of the further reading materials available:

  1. Privilege and without prejudice communications—overview

  2. Legal professional privilege—LPP—for in-house lawyers—overview

What is privilege?

The core aim of privilege is to protect the confidentiality of particular communications between clients and their lawyers or (in some circumstances third parties).

Privilege entitles a party (or their successor in title) to withhold documents from production to a third party or the court. Note that the right belongs to the client and not to the lawyer and therefore the death of a client does not extinguish privilege; privilege passes to the successor in title.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

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