The entitlement of a client to keep confidential its communications with legal advisors is often considered sacrosanct. Without it, the process of taking advice would be rendered more complex and dealing with any kind of dispute almost impossible.
The right however is not absolute, as events currently unfolding in the US legal and political sphere dramatically remind us. Confidential exchanges between President Donald Trump and his former attorney Michael Cohen were recovered by the US Department of Justice, leading to Cohen’s guilty plea to campaign finance irregularities and other charges.
What is legal privilege?
Legal professional privilege is a shorthand expression to cover information that a court or similar body may not compel a party to produce, even if it would be relevant to a matter before it. It can be divided into two sub-categories: legal advice privilege and litigation privilege. Both types of privilege attract the same protection from disclosure, and the difference is in how they arise.
Legal advice privilege covers written and oral communications between lawyers and clients in which legal advice is sought or given. For a document or discussion to attract legal advice privilege it must have been, and remain, confidential between the lawyer and client.
Litigation privilege applies to documents created, and discussions that take place, in contemplation of litigation. This will be a question of fact, and the issue will often be timing, i.e. at what point was litigation in contemplation. The privilege applies to documents created for the purposes of the potential litigation, such as expert reports, witness statements and precognitions, and no lawyer need be involved for litigation privilege to arise. No litigation need ever take place for the privilege to exist, and the privilege continues to apply after litigation has concluded (or been abandoned).
A recent judgment of the EAT serves as a reminder that information may lose its privileged status in certain circumstances, possibly with serious consequences. This may happen where the legal adviser:
has gone beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy
The facts of the case
The case involves a claim by a solicitor against an anonymised firm which had employed him. The claimant was employed from 1990 until his dismissal on 31 January 2017. He suffered from Type 2 diabetes and obstructive sleep apnoea. From 2011 onwards there were concerns with his performance at work. He alleged disability discrimination and failure to make reasonable adjustments, and raised a grievance which concluded in June 2016.
Beginning in April 2016, the respondent had also been running a redundancy programme. The claimant was unsuccessful in applying for a number of roles and was placed at risk.
The evidence was accepted at tribunal that in May 2016 the claimant overheard a conversation in a pub on London’s Fleet Street between a group of middle aged professionals. It was accepted that the conversation was the subject of legal professional privilege. Two women in the group were overheard by the claimant discussing a disability discrimination complaint by a senior lawyer at the respondent’s firm. The woman stated that there was a good opportunity to manage out the individual by severance or redundancy within a reorganisation already underway.
Some months later, in October of that year, the claimant was anonymously sent a copy of an email between two solicitors marked “Legally Privileged and Confidential”. The claimant, recalling the overheard conversation months before, asserted that the e-mail contained advice on how to commit unlawful victimisation against him by using the redundancy/restructuring programme as a cloak for his dismissal. Within it the advice was given that:
there is at least a wider reorganisation and process at play that we could put this into the context of…otherwise we risk impasse and proceedings with ongoing employment with no obvious resolution
The claimant was dismissed in March 2017 by reason stated to be redundancy, and submitted claims of disability discrimination, victimisation and unfair dismissal. The respondent applied for strike out of the parts of the claimant’s case which relied on the internal email. The respondent denied the claimant’s interpretation of the email was correct, and argued that in any event it was subject to privilege. The tribunal agreed with the respondent, and the claimant appealed.
The EAT was satisfied that the email contained advice on how to commit an unlawful act of discrimination and that the way it was drafted meant that it fell outside the boundaries of legal privilege. The claimant’s appeal succeeded and the email could be relied upon by him in his complaints.
The judge recognised that advising an employer to commit an act of discrimination would not necessarily always be serious enough to override legal privilege. However, what had taken place was:
an attempted deception of the Claimant but also, if persisted in, deception of an Employment Tribunal in likely and anticipated legal proceedings
This case highlights a number of risks and practice issues for the legal profession and their clients.
It confirms that not all legal advice will be privileged. Going further, the threshold for what constitutes advice in relation to “something of an underhand nature” may at times seem low and be of real concern to legal practitioners asked by their clients to provide a comprehensive range of options in a given situation. How advice is delivered can vary subtly but it will be key.
Clearly also, the case sounds a warning to any business or law firm in terms of its data security. The claim relied heavily on an anonymously disclosed email which in the normal course of events the claimant would not have seen and no doubt was never expected to see.
Finally, for any member of the legal – or for that matter any other – profession who has discussed a work matter, even on a no-names basis in the apparently safe confines of the local pub, this claim provides substantial food for thought.