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Is legal professional privilege under threat? A roundtable discussion at the Law Society

28 October 2016
Dr Carolina Gasparoli

 

Over the last few years, the legal profession has been worryingly criticised for the way legal professional privilege (LPP) was asserted in certain cases. For example, the Serious Fraud Office and the Financial Conduct Authority have raised concerns that LPP may be used to prevent fully informed investigations from taking place.

During the summer, the Work and Pensions Select Committee accused lawyers of 'laziness' for refusing to waive privilege in the BHS affair. I have previously discussed in this blog the threat represented by the Investigatory Powers Bill that, in its original draft, contained no protection for LPP.

The Law Society recently hosted a high profile roundtable to discuss these and other threats to LPP. The event was chaired by Colin Passmore, senior partner of Simmons & Simmons, and was attended by members of the profession, their clients and academics.

Our guests highlighted various explanations for the progressive attack on LPP, including the growing number of in-house lawyers and differences in the law of privilege across jurisdictions. I would like to expand on three points.

First, technological developments inevitably present new challenges to the existing legal framework. This is the case, for example, with bulk interception, acquisition, and equipment interference powers regulated by the Investigatory Powers Bill. These powers, we argue, could jeopardise the client's right to speak in confidence to their lawyer.

Second, investigators and regulators have developed an increasingly negative attitude towards LPP, which should be considered within the broader context of the 2008 economic crisis. In the public's opinion, the financial sector was largely responsible for it, but it has never been properly held accountable. This is why, arguably, politicians and regulators do not want to be seen as compromising. As a result, LPP is often perceived as an inconvenience that gets in the way and prevents the agencies from doing their job.

The reputation of the financial services industry seems to have also engulfed the professions that advise it, including solicitors. This is why some have suggested that the trust in the profession seems to be declining, with the consequence that lawyers are often considered with suspicion.

As technology and society evolve, the profession needs to remain vigilant and protect LPP and other fundamental rights against gradual and stealthy erosion. The purpose of the roundtable was to address this danger and to encourage debate around it.

The Law Society will publish its practice note shortly to remind practitioners of the essential elements of LPP and to help them navigate some of the particular challenges that arise when pressures to waive LPP are increasing.