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Legal professional privilege

Posted: 9 September 2019

Legal professional privilege (LPP) protects certain confidential communications from disclosure without your client’s permission, even in court.

There are two types of LPP:

  • legal advice privilege
  • litigation privilege

An assessment of whether LPP applies often requires delicate and difficult balances to be drawn and there may be serious consequences if you disclose privileged material without your client’s consent. For these reasons, it is critical that solicitors take great care to advise clients on LPP appropriately.

This page gives a very brief overview of the key aspects of LPP. Our practice note contains more detailed guidance.

Solicitors will wish to familiarise themselves with our LPP practice note before advising clients.

Legal advice privilege

Legal advice privilege protects communications between a lawyer and client made in connection with the giving or receiving of legal advice.

This includes communications that form part of a continuum which aims to keep client and lawyer informed so that legal advice may be given as required.

Litigation privilege

Litigation privilege protects communications between lawyers or their clients and any third party for the purpose of obtaining evidence or information in connection with existing or reasonably contemplated litigation.

For litigation privilege to apply, the communications must also be made for the sole or dominant purpose of conducting that litigation and the litigation must be adversarial rather than investigative.

Exceptions to LPP

There are only narrow exceptions to the application of LPP. The main one is the so-called iniquity exception, under which no LPP arises if a lawyer’s assistance is sought to further a crime, fraud or equivalent conduct.

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

However, your client may waive LPP, either expressly or by implication.

There are express exceptions from certain GDPR requirements for data covered by LPP.

You can contact the SRA for ethics advice.

Resources

LPP – practice note

Withdrawing from a criminal case – practice note  

Responding to a financial crime investigation – practice note  

Duties of an anti-money laundering reporting officer  

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