In this case the High Court considered whether RBS could validly claim that memoranda and summaries of meetings, drafted by lawyers, could attract legal advice privilege.
RBS set up an Executive Steering Group (ESG) to oversee the bank's response to the global investigation into allegations of LIBOR misconduct. External law firms (particularly Clifford Chance) were heavily involved in the ESG. RBS had had conference calls with the external law firms on a regular basis to discuss the status of the investigations and communication with regulators, with legal advisors providing advice and analysis on issues and next steps. Clifford Chance took the lead on these calls, setting the agenda, and circulating advice.
The High Court had to consider whether the following documents, drafted by Clifford Chance, could benefit from legal advice privilege:
- Confidential memoranda which advised and updated the ESG on the progress, status and issues arising in the regulatory investigations;
- Confidential notes and/or summaries about the discussions between the ESG and its legal advisers at the meetings. These notes reflected Clifford Chance's views on the regulatory investigations, as ultimately the firm determined the information to be included in the notes.
The High Court upheld RBS's claim to legal advice privilege. It said that it was in the public interest for regulatory investigations to be conducted efficiently and in accordance with the law, and that the public interest will be advanced if regulators can deal with experienced lawyers who can advise their clients how to respond and co-operate. To do this, lawyers must be able to give their client candid factual briefings as well as legal advice, without fear that this will be disclosed without their consent. Minutes will not be privileged simply because a lawyer takes the minutes. However, privilege will be upheld where the lawyer takes the lead in deciding how to present the information, setting agendas and co-ordinating meetings as part of their legal advice and assistance.
What this means for employers
This is an important case for employers seeking legal advice, particularly in the context of regulatory investigations. It would have been very worrying had it gone the other way. However, employers should remember that there are limits to privilege. To be privileged, the document must be created for the purposes of obtaining legal advice. Merely having a lawyer in the room to take a note, marking an email as "privileged", or copying a lawyer in on an email, will not protect the document from disclosure in litigation.