The scope of legal privilege remains a subject of debate. A court in the UK recently ruled that factual summaries may also be covered by legal privilege. The Court decided that the purpose of the information, rather than its source, is relevant in determining whether it is privileged. This case illustrates the challenge of preserving legal privilege, a challenge that is equally present in the Netherlands. We will closely follow these developments and keep you informed.
“Candid factual briefings” may be covered by legal privilege in the UK, the High Court of Justice of England and Wales ruled on 5 November 2015. The case at hand was brought against The Royal Bank of Scotland (RBS) by the Property Alliance Group Limited (PAG). PAG alleged that it had been induced by RBS to enter into four interest-rate swaps agreements from 2004 through 2008.
PAG sought disclosure of “high level” internal reports, reviews and summaries drafted by RBS lawyers, relating to allegations of LIBOR misconduct. The documents had been sent to the Executive Steering Group, a committee that was formed to oversee – and coordinate responses to – regulatory investigations into the LIBOR matter. RBS claimed legal privilege over these documents, stating that they had been prepared by its lawyers for the purpose of providing legal advice. A judge ordered a judicial inspection of these documents to assess whether legal privilege should be upheld.
PAG argued that not all attorney-client communication constitutes legal advice therefore making it privileged. According to PAG, solicitors nowadays tend to offer a wider range of services and not all information provided by clients will necessarily be shared for the purpose of obtaining legal advice.
According to the High Court, it was indeed clear “that many of the relevant entries in the body of the documents were no more than a brief factual recital of a recent event that had occurred or which was scheduled”. The Court, however, considered that the documents formed part of “a continuum communication and meetings” and were prepared in “a relevant legal context”. It ruled that:
“lawyers must be able to give their client candid factual briefings as well as legal advice, secure in the knowledge that any such communications and any record of their discussions and the decisions taken will not subsequently be disclosed without the client’s consent”
The High Court also held that in cases where lawyers are not “being asked qua lawyer to provide legal advice”, legal privilege may not apply. Documents may be produced if a lawyer provides a service as a “simple matter of administrative convenience”. The lawyer’s work may then lack a relevant legal context – for instance if the lawyer has merely been asked to take minutes of a business meeting, where no legal advice is given. However, if services form an “integral part of their provision of legal advice and assistance” legal privilege may correctly be claimed.