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Chapter CH22252

Document Cited in Related
Vincent
Published date11 March 2016
Record NumberCH22252

When testing a claim to legal advice privilege you should be aware of the following.

For a claim to legal professional privilege to succeed

  • the lawyer must be engaged professionally and
  • the context of the engagement must be to give legal advice in a situation where a lawyer would typically advise. This includes ‘in house’ lawyers employed within an organisation.

Materials that are covered by legal professional privilege include:

  • all communications relating directly or indirectly to the advice
  • advice on what the client should and should not do

but the following are examples of materials that are not covered by legal professional privilege:

  • advisers’ invoices, engagement letters, contracts (watch tax contingent fees)
  • disbursements (expenses billed to client)
  • marketing material
  • communications with client with no legal (including tax) advice
  • timetables, flowcharts or other records of what took place or was planned
  • cast list, check list, transaction, financial and document control records
  • notes or records of decisions taken where advice was not discussed (for example, board or trustee decisions, notices, resolutions and so on - advice parts can be redacted)
  • calculations, costings, economic analysis, structures and plan diagrams
  • accounting opinion or advice and financial records
  • third party communications with, for example, banks or regulators
  • records of fact.

If the lawyer is engaged by more than one client with similar interests (for example, a company and its directors) there may be joint legal privilege.

Advice to one client keeps legal advice privilege when shared with those with a common interest in the advice so long as...

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