Legal Advice Privilege: All History and No Principles?

The Supreme Court’s judgment on legal advice privilege was handed down this week.  In outline their position appears to be legal advice privilege should not be extended to professional tax advisers; that this approach defies a principled understanding of how legal professional privilege is justified; but that statue and the common law have co-mingled sufficiently messily to require Government not judicial intervention.  The Government has promptly decided, I am told, that intervene it will not.

There are a number of questionable assumptions behind the judgment.  One is the majority claim that everyone believes that Legal Professional Privilege applies only to lawyers when, ahem, two of the Supreme Court Justices do not appear to hold that belief.

A second is that legal advice privilege is clearly understood.  I rather beg to differ and urge readers to watch the exchanges between Lord Justice Leveson, Robert Jay QC and Alistair Brett at the Leveson inquiry.  I set out a relevant extract from the hearing below.  One could make any number of points about the uncertainties surrounding legal professional privilege, but I will spare the reader as I am about to do the school run.

There is however a more fundamental point which is what this case tells us about the fundamental justification for legal professional privilege.  Lord Sumption’s elegant and powerful analysis of the history and rationale for legal advice privilege quotes Lord Scott:

the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else.

Interestingly, however, we know from the case that the majority of tax advice is provided by accountants by some distance.  After this case they remain in the position of not having legal advice privilege, and yet clients feel able to instruct them without the security that legal advice privilege is said to provide.  They do not appear to need it.  It is worth bearing that in mind as legal professional privilege is not an unalloyed good.  We have seen how News International have selectively waived it in an attempt to dance around their own wrongdoing.  Legal advice and litigation privilege was been invoked in a partially successful attempt to shield these ‘document management’ policies of big tobacco from scrutiny.  The judgment on this tobacco case shows how uneasily legal advice privilege can sit with the rule of law.

That is not to say that legal advice privilege should be abandoned (something not in real prospect).  However,  a right crystallising from a right for lawyers into a right for clients at a time in history when Lord Sumption tells us  lawyers were seen as, the growling jackals and predatory pilot fish of the law” probably does need a harder and more rounded look than can be afforded by the Supreme Court.  This is particularly so where this scrutiny occurs in a spat about competition where the accountants already seem to be beating lawyers hands down in terms of market share.

The Leveson passage follows….

Q. So we understand the context. Patrick Foster saw you on about 20 May 2009 about a story he was working on. He came into your office with Mr Martin Barrow, who was the home news editor, his immediate line manager. Mr Barrow indicated that Mr Foster had a problem about a story he was working on. Mr Barrow then left and there was a conversation off the record. What does “off the record” mean in this sort of context, Mr Brett?

A. A duty of confidentiality. The journalist would say, “Can I talk to you in confidence, Alastair?”

Q. What would be, though, the limits of that duty? Presumably duties owed to the court would be higher duties, would they not?

A. Yes, that would be right.

LORD JUSTICE LEVESON: Neither is quite the same as a privileged situation, is it?

A. A privileged situation would obviously be where you’re giving advice of some kind or other but that presupposes —

LORD JUSTICE LEVESON: He’s just about to ask you for some.

A. Yes, he is.

LORD JUSTICE LEVESON: So would you consider that privileged?

A. I probably would regard it as privileged, yes. Privileged and confidential.

MR JAY: So it attracts, in your view, legal advice privilege, have I correctly understood it?

A. Yes.

LORD JUSTICE LEVESON: But he’s not your client.

A. No, my employer is my client. This is the dilemma you’re faced with. You have a journalist coming to you and saying, “Can I talk to you Alastair, I need some advice, can I talk to you confidentially?” and I would say, “Yes, of course you can”. That leads you into the difficult dilemma that you obviously have personal relationships with the journalists on the newsroom floor, but you equally have a duty to your employer, the company, the newspaper. And the two don’t necessarily go in the same direction.

LORD JUSTICE LEVESON: I understand that, but why would there be legal advice privilege? If somebody comes to me for advice now, not when I was in practice, besides telling them it’s not worth a great deal, I don’t suppose that the discussion would engage privilege at all, would it?

A. In your current situation, no. But even before.

LORD JUSTICE LEVESON: Or even before, yes.

A. If I’m approached by somebody for legal advice, and I was, I think I would regard that as covered by legal professional privilege.

LORD JUSTICE LEVESON: I’ll have to think about that.

A. It raises all sorts of interesting questions about in-house lawyers.

LORD JUSTICE LEVESON: Indeed.

MR JAY: But maybe you’re using the term “off the record”, if I may say so, without legal precision. Clearly you would be advising your employer, that entity would be your client, and legal advice or legal professional privilege would attach, but if you’re advising an employee of your employer, and that employee may be in breach of duty to his employer, then there’s — I won’t say a difficult situation —

A. That’s precisely the word I was going to use: a difficult situation.

Q. Maybe the correct analysis is that there isn’t legal advice privilege in relation to those relations. What happens if the employer asks you to give them the gist of the conversation you’ve just had with Mr Foster?

A. That’s precisely when I have a ghastly, horrible, difficult situation in front of me.

Q. Let’s see whether it has any bearing on subsequent events.

A. Okay.


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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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