Privilege is encompassed in its purpose: to ensure parties can obtain open and candid legal advice, and/or (probably more importantly) to prepare for and defend litigation, without having to make unwanted disclosures to the other side.
What is privilege?
Privilege has two components: legal advice privilege and litigation privilege.
|Legal Advice Privilege||Litigation Privilege|
|- Protects confidential communications (and evidence of it).|
|- Operates between an attorney and a client.||- Operates between an attorney and a client, and an attorney or client and a third party - i.e. it is wider than legal advice privilege.|
|- Dominant purpose: seeking and obtaining legal advice (litigation does not have to be contemplated) – e.g. regulatory or tax advice, investigations, opinions on legal rights etc.||- Dominant purpose: seeking and obtaining legal advice in preparation for litigation reasonably contemplated.|
Who is subject to privilege under SA law?
This depends on what category you fit into.
|The ‘attorney’?||The ‘Client'?||A Third Party (litigation privilege only)|
|- An attorney at a law firm. - In-house legal advisor (provided they are acting in a legal advisor role, rather than an executive one). Under SA law, no formal admission to practice is required, but this is likely the position in the UK.||- This is circumstantial. It does not necessarily include every person within an organisation, or even an entire department. - An Agent - provided their appointment is for the purposes of assisting to obtain legal advice / in pursuit of litigation reasonably contemplated||- An LPO - An expert - Agents of clients - Claims consultants|
What are the requirements of Privilege?
- the attorney must be acting in the capacity as a legal advisor;
- consultation in confidence;
- privilege must be claimed over the communication; and
- the advice must not facilitate fraud.
How does this work in practice?
- Communications need not be of a purely legal, but they cannot be purely commercial either. Provided it is advice by a legal advisor, acting in that capacity, confirming the client's legal rights, liabilities, obligations and remedies, it will be privileged.
- Communications must be privileged from the outset - i.e. the intention of creating the communication / document etc. must be for the purposes of obtaining legal advice, and/or in pursuit or defence of litigation (reasonably contemplated). A mere confidential handover of a document will not create privilege.
- Privilege exists once it is claimed. If not, it is presumed to have been waived.
- As long as litigation is contemplated, you may approach experts without fear of associated instructions or briefing documentation becoming disclosable. This differs from the position in the UK, for example, where instructions to experts are as a matter of policy made available to the court and the other side.
What steps can I take to protect privilege?
- Be clear on the nature of the instruction for the creation of communications / documents from the start. Intention is key to creating privilege.
- Privilege must be claimed. Consider a suitable amendment to your email signature or standard disclaimer to protect your position.
- Do not refer to a document, particularly in pleadings or correspondence, if you do not wish for it to be disclosed. Mere reference to a privileged document can destroy privilege.
- Be careful in engaging claims consultants (i.e. who are not attorneys) in an ongoing project advisory capacity. This advice may be disclosable later if a dispute manifests. Legal advice privilege does not attach as broadly as litigation privilege.
- Privilege is a negative right to prevent disclosure. It is not a positive right that can be invoked to prevent further publication once it has already been disclosed. Bare this in mind when creating and dealing with sensitive documents.
- Confidentiality is not privilege. Privilege must exist when the communication is created. A confidential handover to a legal advisor will not cure its initial un-privileged status.
If all else fails, follow this flowchart as a first port of call:
Click here to view image
It is both a client and a legal advisor's responsibility to create privilege at the outset, and to maintain privilege throughout the existence of that privileged document. It is a right to claim privilege, but it requires participation by all parties connected to the communication(s). Inadvertent or unintended disclosures can so easily be avoided if care is taken as to how advice is commissioned, and by whom. If in doubt, simply ask your attorney.