In a significant ruling, the UK Supreme Court has confirmed that legal advice privilege only covers legal advice given by a member of the legal profession.
Legal advice privilege attaches to all communications passing between a client and his lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which relates to the rights, liabilities, obligations or remedies of the client. Where it applies, the client is ordinarily entitled to object to any party seeing the communication for any purpose (although certain limited exceptions may apply).
In the case before the UK Supreme Court, the insurance company Prudential sought to assert the privilege in respect of legal advice given to it by the international accountancy firm, PricewaterhouseCoopers on a tax scheme implemented by the company.
The Court, by a majority of 5:2, held that the privilege did not apply.
The majority accepted that logically it is difficult to see why privilege should apply to communications with legal advisers who happen to be qualified lawyers, but not to communications with other professionals qualified to give expert legal advice in a particular field. However, the majority considered that extending the scope of the privilege to legal advice given by non-lawyers would be likely lead to uncertainty and inconsistency. They were of the view that if the current system should be changed, then that change should come about by way of legislation.
The two dissenting members of the Court could see no persuasive reason as to why the privilege should not be extended to advice given by a member of a profession which has as an ordinary part of its function the giving of skilled legal advice on the subject in question. They took the view that as the privilege is the right of the client, it cannot depend on the status of the adviser. Logically, they said, it must follow that legal advice given by an accountant should attract the privilege in circumstances where it would have done so had the advice been given by a solicitor or barrister.
The decision does not affect litigation privilege which continues to apply to communications made between a client and his lawyers or other professional advisers where legal proceedings are pending or reasonably contemplated.
Position in Ireland
The decision of the UK Supreme Court is not binding on the Irish courts, but it would certainly be persuasive authority.
Pending a ruling on the issue from an Irish court, it is very important for clients to exercise caution when taking legal advice from anyone other than a solicitor or barrister as they will not be entitled to claim legal advice privilege in those circumstances.