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What should you know about legal professional privilege?

6 June 2017

Legal professional privilege (LPP) protects all communications between a solicitor or barrister and his or her clients from being revealed without the permission of the client. It is a fundamental common law and human right, which is enjoyed by clients rather than their lawyers.

We answer some of the key questions around LPP.

Am I obliged to assert LPP?

Yes, unless your client waives it or unless you believe the assertion has been advanced in bad faith. Disclosing information or material protected by LPP without your client’s consent may enable the client to challenge subsequent use of the material and take civil action against you.

This does not apply if you suspect or believe your client has a fraudulent, criminal or otherwise iniquitous purpose in seeking your advice.

Can action be taken against me for asserting LPP?

Where a claim to LPP is properly made, no action can be taken against you for asserting it; and no action can be taken against your client for refusing to grant any waiver sought by law enforcement agencies or regulators.

However, if you assert LPP you know to have been advanced in bad faith, you may be exposed to liability for conspiracy to pervert the course of justice.

Who decides whether a claim to LPP is properly made?

Law enforcement agencies and regulators are not entitled to decide themselves whether a claim to LPP is properly made.

It is not for you to satisfy law enforcement agencies and regulators that claims to LPP are well-founded - although you are under a duty to advise clients whether claims to LPP under either head are based on proper grounds.

Where LPP properly arises and has not been curtailed by parliament, it cannot be overridden by competing private or public interests in disclosure.

Does LPP differ from country to country?

Yes. If your client is facing investigations or proceedings abroad, LPP and its application will differ in substance and scope from the protection afforded under English law.

For a comprehensive explanation and guidance, read our practice note on LPP.