LPP
Privileged Communications
Businesses being investigated by the EU, US and UK competition authorities may not be required to produce or disclose privileged communications – such as those between professional legal advisers and their clients. This protection is not available in India.
Exception: Confidential communications between a client and his legal adviser are not privileged if made for the purpose of committing a fraud or crime. For these purposes, it is irrelevant whether the fraud is that of the client, the adviser or a third party acting through an innocent client.
The FOIA gives rights of public access to information held by public authorities….But section 42 contains the exemption for legal professional privilege (LPP) to protect the confidentiality of the substance of communications between a client and their (public) legal adviser, even in court (privilege against discover in litigation).
LPP is however lost (waived):
A/ if it fails the PIT (public interest test), or
B/if previous disclosures (to the world at large?) means the info is no longer confidential.
the privilege can be waived if the communication is shared with a third party, i.e., someone other than the attorney and the client. For example, if a privileged email between an attorney and a client is later forwarded by either the client or the attorney to a third party, then any privilege is typically waived. The result of waiver is that the email is subject to discovery by adversaries and might be admissible at trial.
LPP waiver exceptions: examples (LPP stays):
-an accountant helping to translate dense financial information for the benefit of the client,
-a Russian translator communicating with a non-English-speaking client;
-a lawyer’s selection of documents (.sent by a client to a legal adviser ) even if the documents selected are publicly available from elsewhere;
-when a third-party contractor is the “functional equivalent” of an employee, communications among an entity, the entity’s attorney, and the entity’s “functional” employee typically remain privileged;
-co-clients: where multiple clients retain the same attorney(s) to represent them, communications among the multiple clients and the shared attorney(s) remain insulated from discovery. In this way, each additional client of the same attorney is not considered a third party who can trigger LPP waiver;
-The “joint defense” privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counsel—all without allowing their common adversary (the plaintiff) to discover those communications. The joint defense version of the attorney-client privilege applies during live litigation, as to both defendants in the same case and defendants in related, but separate, cases.
-some courts recognize a “joint plaintiff” version of this extended privilege as well, which applies where plaintiffs are pursuing related litigation, whether in the same or different courts
-CIP: allows one group of clients and their counsel to communicate confidentially with another group of clients and their separate counsel—but this time without the requirement of active litigation (in most courts, at least). The validity of an assertion of a common interest privilege might not be tested until litigation arises, but the allegedly privileged communications can occur long before any such litigation arises or is even anticipated.
why LPP?: The client’s ability to speak freely and frankly with his or her legal adviser in order to obtain appropriate legal advice is a fundamental requirement to ensure complete fairness in legal proceedings.
Two types of LPP: [Bellamy decision]
A/Litigation privilege
confidential communications for providing or obtaining legal advice, or preparing a case for litigation. There must be a real prospect or likelihood of litigation….It can also cover communications between lawyers and third parties if for the purposes of the litigation.
B/Advice privilege
confidential communications between the client and lawyer, made for the dominant purpose of seeking or giving legal advice….Advice from a lawyer about financial matters or on an operational or strategic issue is not privileged, unless it also covers legal concerns, such as advice on legal remedies
Who is the client?
Communications with third parties are never covered by advice privilege.
Communications with third parties are only covered by advice privilege if they have been made for the purposes of the litigation.
Thus, is important to determine who the lawyer’s client is. For instance, all of a public authority’s employees in a particular department might be considered to be the client of a lawyer, whereas the remaining staff of the authority might be considered to be third parties.
Who is the legal adviser?
In Calland v Information Commissioner & the Financial Services Authority (EA/2007/0136, 8 August 2008) the Tribunal confirmed that legal advice and communications between in-house lawyers and external solicitors or barristers also attract LPP
A document does not actually need to be sent for it to count as a communication; a document that has been prepared to convey information, but is still on its creator’s file, is still a communication. Communications might include draft documents prepared with the intention of putting them before a legal adviser, even if they are not sent. An example might be a witness statement that was prepared, but not actually sent to a solicitor.
Any enclosures or attachments or preexisting documents are only LPP if they were created with the intention of seeking advice or for use in litigation. If an enclosure existed before litigation was contemplated or possible that legal advice might be needed, LPP will not apply. There is however one important exception to this rule.
scenarios
The first scenario concerns instructions sent to counsel to ask for advice about liability and quantum following a road traffic accident. The table below indicates which documents will be subject to LPP.
| Example enclosure | Privileged | Not privileged |
| (a) Car service records | (a) (b) and (c) |
| are not covered by LPP. They existed before the accident so were not created for use in litigation.
They are documents that were already held by the client, which the lawyer selected using their skill and judgement for the purposes of litigation. |
||
| (b) MOT | see (a) above | |
| (c) GP’s medical records | see (a) above | |
| (d) Medical expert’s report on injuries sustained | (d) and (e) are covered by LPP (created by third parties when litigation was contemplated, for use in the litigation) | |
| (e) Witness statements sent from independent witnesses | see (d) above | |
| (f) Photo of scene of accident taken by client | (f) is covered by LPP (created for use in
prospective litigation) |
|
| (g) Police accident report | (g) not covered by LPP (created by police to investigate accident) |
| (h) Correspondence | (h) could be | |
| between the parties to the | covered by LPP | |
| litigation | for the purposes | |
| of FOIA | ||
| (documentation | ||
| created for | ||
| purpose of | ||
| prospective | ||
| litigation) – | ||
| unless in public | ||
| domain (see | ||
| ‘loss of LPP’ | ||
| below) |
Counsel responds to the instructions, advising how to proceed and enclosing decided legal cases that he proposes to rely upon. These enclosures are covered by LPP.
LPP and communications relating to crime
LPP will not cover communications to enable a client to commit crime or fraud. This applies whether or not the lawyer is aware of the wrongdoing. However, LPP applies after the commission of a crime.
i could Research tax evasion, money laundering court decisions. then seek FOI disclosure of communications where their lawyers advised them how to do it….then i can seek liability for the lawyers, accountants etc as well, in the public interest.
Loss of legal professional privilege and why ‘waiver’ isn’t relevant under FOIA
LPP can be waived (lost) in a particular court case, but retained, for the same information, in other contexts and in other court proceedings.
However, waiver arguments have no relevance under FOIA because under FOIA we are concerned with disclosures to the world at large rather than disclosures to a limited audience. In a freedom of information context, LPP will only have been lost if there has been a previous disclosure to the world at large ( Unrestricted disclosure) and the information can therefore no longer be considered to be confidential.eg: news; or disclosures made in open court
Restricted disclosure
disclosure of information to a limited audience, with restrictions on the further use of the information; for example, a disclosure made on a confidential basis. The information would therefore remain confidential from the world at large, thus retaining LPP. a restricted disclosure may be made inside or outside the litigation context.
Making a disclosure only to a party’s opponent and to the court is an example of a restricted disclosure in the litigation context.
Outside litigation, making a disclosure to a business partner might be a restricted disclosure.
Intention is irrelevant
For example, an employee of the public authority reveals the substance of legal advice, when speaking in public. As a result, the public authority would not be able to claim LPP.
A lawyer’s selection of documents can be covered by LPP, even if the documents selected are publicly available from elsewhere.. In this case privilege can be claimed for the selected documents even if they were publicly available
However, LPP is not available for the selection of documents sent by a client to a legal adviser
Documents marked ‘without prejudice’
‘without prejudice’ is often marked on correspondence as part of negotiations on a settlement. This means that the information is privileged under the Civil Procedure Rules, but does not necessarily mean that it is privileged under s42 of FOIA, thus Without prejudice does not grant LPP.
The duty to confirm or deny
Section 1(1)(a) FOIA requires a public authority to confirm or deny (whether or not it holds information on legal advice it has sought or received) , except ( Section 42(2)) where to do so would involve the disclosure of the substance of LPP information, or would cause some harm or prejudice, for example to the exercise of its statutory functions, to commercial interests or more generally to the conduct of public affairs. In that case it should decide exactly what harm or prejudice it envisages (but there is no obligation to prove this possible harm/prejudice).
Hypothetical examples:
| Example: section 42(2) may apply | Example: section 42(2) does not apply |
| Mrs Brown asks Borsetshire County Council for “a copy of any legal advice you have obtained that would allow you to sell the kitchens of Borset High School to a private catering company”.The council has obtained legal advice on the subject of selling off school kitchens to a private supplier, who would then provide school dinners to the pupils. The advice confirms that it is legally permissible to sell some kitchens, including those of Borset High School. The council holds a copy of the requested information.
The advice is covered by LPP and is exempt under s42(1). For the council to confirm or deny whether it holds the information requested would reveal the content of the legal advice. The council might therefore be able to cite section 42(2), but it must first apply the public interest test. |
Mrs Brown asks Borsetshire County Council for “a copy of any legal advice you have obtained about selling the kitchens of Borset High School to a private catering company”.The council has obtained legal advice on the subject of selling off school kitchens to a private supplier.
For the council to simply confirm that it holds advice about selling the High School kitchens to a private company would not reveal the content of that advice. Since confirming or denying would not disclose any legally privileged information, the council cannot use section 42(2). |
If confirming or denying that information held would disclose LPP information, then the public authority must still carry out the public interest test to decide whether to refuse to confirm or deny.
The public interest test
Once an authority has established that s42(1) or s42(2) is engaged (ie, there is LPP), then needs to apply the public interest test (PIT) to consider whether the public interest in keeping LPP outweighs the public interest in disclosure.
The general public interest in keeping LPP is strong, because the principle behind LPP is safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, which is fundamental to the administration of justice.
| Factor in favour of maintaining the exemption | Factor in favour of disclosure |
| The concept of legal professional privilege and the rationale behind the concept (ie ensuring frankness between lawyer and client which goes to serve the wider
administration of justice etc). |
The assumption in favour of disclosure and the rationale behind the assumption (ie accountability, transparency, furthering public debate etc). |
Additional weight may be added to the above factor if the advice is:-
|
Additional weight may be added to the above factor if the following issues are relevant in the particular case:
|
The equivalent (to FOIA) exception under the EIR (environmental information regulations) is regulation 12(5)(b); please refer to the ICO’s separate guidance: The course of justice and inquiries exception (regulation 12(5)(b)). Note that this guidance refers to the question of whether or not information is confidential from the world at large: whether it has entered the public domain. Further, detailed guidance on this specific question will be produced in the future.
Contact us www//ico.gov.uk
CIP
This CIP can produce a game-changing document and keep it out of an adversary’s hands
CIP is one of the exceptions to the LPP waiver. Thus, CIP allows me , as a solicitor, not to disclose, even to the court.
CIP is the right, even when there is no active litigation, to not disclose confidential communications (between a group of clients and their counsel, with another group of clients and their separate counsel)
What Is a Sufficiently “Common” Interest?
CIP can apply even where the parties invoking the privilege have adverse interests in arm’s-length transactions, such as (M&A).
But pre-merger negotiations between separate entities are not cip protected because the companies are engaged in a zero-sum game in obtaining the best deal for themselves at the other’s expense, and therefore cannot share a common interest. But some courts have disagreed.
shielding communications between prospective buyers and sellers from discovery reduces unwelcome surprises after acquisition, diminishing the risk of subsequent litigation.
in the Visual Scene case from Florida a plaintiff distributor of glass sued three defendants because the glass was allegedly defective. Two of the defendants were involved with manufacturing the glass, while the third defendant processed the glass and shielded communications with the plaintiff against discovery by one of the defendant manufacturers. The defendant manufacturer argued, that the plaintiff and the defendant processor could not claim a joint privilege because they were adversaries on opposite sides of the litigation. The court agreed, ruling that discovery was permissible.
But the appellate court reversed the trial court, finding that the communications were privileged from discovery because the plaintiff and the defendant processor shared a common interest in showing that the defendant manufacturer was liable for the plaintiff’s damages (if any).
communications between the plaintiff and the defendant processor on many other issues were not privileged because they were litigating against each other regarding the defendant processor’s alleged liability. The plaintiff conceded [that] its interests in this litigation are opposed to” those of the party with whom it claimed a mutual privilege. On any contested issues, no privilege could exist between the two parties.
Yet, the court recognized that parties can share a common legal interest, as to one or more issues. “To extend the common interests privilege to parties aligned on opposite sides of the litigation, for another purpose, is allowed. Insofar as the plaintiff established that it suffered damages, both it and the defendant processor shared an interest in proving that the defendant manufacturer was liable for some (if not all) of the damages. This is a common situation: codefendants are often in the position of jointly denying that the plaintiff was harmed by anyone at all, but also arguing in the alternative that any harm was caused by the other defendant.
in litigation involving more than two parties, overlapping alliances can form, each of which is protected by a joint defense or cip, even though the members of each privileged group are otherwise opponents.
The court likewise also found that the work product exchanged between the plaintiff and the defendant processor was protected from discovery
What Is a Sufficiently “Legal” Interest?
Just as a communication must relate to a “common” interest among the clients and attorneys, it must also relate to a “legal” interest.
the legal nature of the communications must predominate over other interests, such as business or personal interests, in order for the privilege to apply
The more imminent that litigation appears, the more likely it might be that the attorney’s advice is predominately legal in nature.
the parties do not need to reasonably anticipate litigation in order to qualify for the common interest privilege.
Who Can, and Cannot, Communicate Directly?
CIP only applies where each client group has its own attorneys. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no CIP. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver.
CIP in the Insurer/Insured Context
The CID (common interest doctrine) is invoked:
First, when disputes arise between an insurer and an insured as to coverage of an underlying settlement or judgment in favor of a third party, the insurer often seeks discovery of materials shared between the insured and its counsel in the underlying case. Insurers often argue that there is a common interest between the insurer and the insured in the underlying litigation such that the insurer is entitled to the defense counsel’s materials.
Second, the insurer and the insured might jointly argue that their common interest against the third-party claimant is a defensive shield against discovery by that claimant of communications among the insurer, the insured, and their counsel. Accordingly, the CID can be invoked both offensively (as a sword by the insurer against the insured) and defensively (as a shield by the insurer and the insured jointly against the third-party claimant).
The CID is distinct from the CIP because in the former there are not necessarily two separate groups of clients and their respective counsel working toward a common goal in the underlying case. Instead, there is often just one attorney (or group of attorneys) working on behalf of the insured (though often paid by the insurer).
the CID is similar to the co-client scenario because the single attorney/firm represents the interests of both the insured and the insurer against the common third-party adversary. In this vein, some courts have recognized that third-party claimants are not entitled to communications exchanged among the insured, its counsel, and the insurer. Thus, the insurer is often not considered a third-party interloper (one who doesnt belong) that destroys the privilege.
when two clients share an attorney, the communications between those clients and counsel are not privileged if a dispute subsequently arises between the clients.
In sum, the CIP and the CID can overlap in litigation and are related, but different.
Practical Application Considerations
To increase the odds that a court will honor a claim of the CIP :
Consider drafting an agreement among client groups and their counsel to prove that they share a common legal interest… a written agreement can provide evidence to a court that the parties believed that they shared a common legal interest subject to privilege.
To avoid potential waiver, ensure that the attorneys in a common interest group handle all communications. The parties themselves should not directly communicate with each other and should not communicate directly with the other parties’ attorneys either.
When attorneys communicate with each other subject to a common interest defense privilege, they should also be in the habit of marking their communications as such. Just as attorneys and clients often state that their confidential communications are subject to the attorney-client privilege—sometimes doing so in the subject line of an email or header of a letter or memorandum—common interest counsel should take the same precautions.