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Legal professional privilege

13 November 2019

This practice note seeks to:

  • clarify the status of legal professional privilege (LPP)
  • explore recent concerns about how the right has been asserted
  • summarise practitioners’ duties
  • clarify the main principles of LPP

It only applies to the law in England and Wales

Users of this practice note should have regard to the litigation in the case of R (Jet2.com) v CAA [2018] EWEHC 3364 (Admin). This practice note will be updated after that litigation is concluded.

Legal status

This practice note is the Law Society’s view of good practice in this area.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

SRA Standards and Regulations

On 25 November 2019, the SRA will introduce the SRA Standards and Regulations 2019. These will replace the SRA Handbook 2011 which will remain in force until then.

References in this practice note are to the SRA Standards and Regulations 2019 as the rules relating to solicitors working for unregulated entities come into force alongside the SRA Standards and Regulations 2019.

Solicitors can access the forthcoming SRA Standards and Regulations 2019 materials and guidance on the SRA's beta website. These materials are regularly being updated so you should check them frequently.

We are developing our own materials to support members with this new regime and our guidance is likely to evolve.

The SRA has also issued non-mandatory ethics guidance for solicitors working in unregulated entities.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

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The Practice Advice Service provides a dedicated support line for Law Society members and employees of law firms. Call us on 020 7320 5675.

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