Andrew Higgins, Legal Professional Privilege for Corporations: A Guide to Four Major Common Law Jurisdictions
| Pages | 108-109 |
| Author | |
| Date | 01 January 2016 |
| DOI | 10.3366/elr.2016.0331 |
| Published date | 01 January 2016 |
Far from being an arid outpost of adjectival law, the rules determining when lawyer-client communications are exempt from compulsory disclosure in litigation should strike equilibrium. The opposing interests of the individual parties, and the community's interest that the administration of justice not be fettered by the shielding of evidence from the judicial process, may conflict readily when the compellability of such communications is at issue. This balancing exercise is compounded by the ubiquity of corporate litigants, where the necessary layers of human agency mean that the interests of different constituents within even a single litigant may not coincide on the desirability of evidence being aired in the open.
Higgins offers a guide to how the rules of legal professional privilege (“LPP”) operate in the corporate context in four jurisdictions: England and Wales, Australia, Canada, and the United States. Despite the Common Law roots of all those systems, this survey evidences convergence and divergence in equal measure. It is therefore especially helpful to find in chapter 1, following an introduction discussing the rationale for LPP, an overview of the major differences between the four systems.
The author is wary of any unjustified attempts to limit the personal scope of privilege. In chapter 3, the definition of “client”, and the elements within the corporation which this includes, is explored. Higgins provides much ammunition for reconsideration of the narrow English approach, and his preference for a broader definition, which includes all employees who are not simply witnesses to potentially litigable events (77–81), is compelling. Chapter 4 turns to the counter-party: who is an “adviser” for the purposes of LPP? The problems posed by in-house counsel (including the additional restrictions imposed by EU law) and alternative business structuring are all addressed fully. Again, Higgins favours a broader definition, supporting the minority view of Lord Sumption JSC in
Another great concern is the approach to be taken where an internal dispute arises regarding the control of information. The interests of the corporation may be furthered by divulging communications from one of its agents, but such disclosure may be prejudicial to that...
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