This scenario would fail the test to establish litigation privilege. In the absence of litigation privilege , the question hinges on the identity of the member of the in-house legal team. Where an external lawyer advises on the merits of a claim, certainly litigation privilege will apply.
The forwarded advice would remain privileged, subject to any subsequent loss or waiver. The possibility of legal advice privilege attaching will depend on the identity of the in-house legal team member.
The circumstances in this case involved a solicitor whom the regulator had struck off for malpractice. Although arguably a scenario in which a solicitor has simply allowed his or her practising certificate to lapse is distinguishable from the Dadourian example, it remains advisable for in-house legal to ensure that their practising certificates are valid in order to protect the privileged status of their advice.
On a strict application of the Dadourian rule and in the absence of any authority to the contrary, the same appears to apply to professional support lawyers, trainee solicitors and paralegals whether in-house or otherwise. If the in-house lawyer is caught by Dadourian either for lack of a practising certificate or because he or she is a trainee , the act of forwarding the advice on to other members of the company without the firm in copy would run a very serious risk of extinguishing any entitlement to privilege.
Even if the firm was copied in, widespread circulation by itself may serve to undermine the confidentiality of the document such that privilege is lost forever. There is scope to assert a further category of privilege in this case, known as common interest privilege.
Common interest privilege applies to communications which are passed on to third parties with the same interest in the same matter to which the document relates, which certainly would seem to be the case in this scenario. However, the law of common interest privilege is unsettled and contentious, giving rise to some highly inconsistent case law. It is therefore advisable for companies to avoid exposing themselves to the risk of having to assert reliance on common interest privilege.
Therefore, it is likely that any communications from in-house legal including the potentially damning anti-trust advice would be disclosable to the Commission investigators. In-house legal should also note that generic advice that is not legal in nature in this example, that which relates to commercial strategy may not attract privilege under English law either. The answer will depend on whether or not litigation has already commenced or is reasonably in contemplation.
A mere possibility of litigation or a general apprehension of future proceedings will not suffice. It is therefore important to not circulate privileged material too widely. The sender should refrain so far as possible from providing any written commentary on the advice, as that commentary may not itself be privileged.
The exception to this is where the sender is an in-house lawyer giving legal advice. The same risks arise when circulating legal advice to third parties outside the corporate client, including to regulators and prosecutors.
In addition to the above safeguards, it will be prudent to specify the limited purpose for which the advice is being disclosed and to make clear that no broader waiver of privilege is intended. Confidentiality agreements may also be appropriate.
As a practical measure, labelling can help to maintain privilege—at least by helping to prevent inadvertent wider circulation of privileged material. It is prudent to avoid, as far as possible, the transmission of particularly sensitive information by email, as it is more difficult to control the limits of distribution. Put IT safeguards in place to minimise risks. Transport accounts for a fifth of all global greenhouse gas emissions, and for many people the evolution from internal combustion to electric vehicles will be one of the most visible and easy to comprehend facets of the energy transition.
Subscribe and stay up to date with the latest legal news, information and events Use of cookies by Norton Rose Fulbright. We use cookies to deliver our online services. Details and instructions on how to disable those cookies are set out at nortonrosefulbright. By continuing to use this website you agree to our use of our cookies unless you have disabled them. Thought leadership Publications Privilege under English law. Client learning Whether a document is privileged is a question of substance rather than form: simply marking documents as privileged and confidential, or forwarding them to a lawyer, cannot make a non-privileged document into a privileged one.
A lawyer may only disclose privileged communications if clearly instructed to do so by their client. However, the chief purpose of CLP is not to confer a right for the benefit of the client, but to facilitate the administration of justice. The proper administration of justice requires that clients are able to communicate freely and frankly with their lawyer, without fear of disclosing any information relevant to the legal advice they are seeking.
It is well understood that, in the absence of the privilege, legal proceedings may be delayed or even miscarried as lawyers may not be able to properly represent their client, or bring relevant matters to the attention of the court.
Ensuring candour and honesty in such communications is important, because we live in a complex society and our laws and legal system are at times very complicated. It is in society's interest that people including corporations seek legal advice about their affairs and in seeking advice feel free to disclose all relevant facts. The complexity of these laws is coupled with increasing reliance on self regulation by the community, for example the self assessment system of taxation.
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Learn More Accept. Criminal Law. Your LinkedIn Connections with the authors. To print this article, all you need is to be registered or login on Mondaq. Divergent Views: Privilege in Investigations India: India has adopted a strict approach on privileged professional communication between clients and legal advisors.
Step in the Right Direction: The concept of privilege has assumed unprecedented importance over the years especially with the rise in internal investigations involving cross-border issues. Vanderbilt, 65 F. Rajkumar Pal 58 Cal , Para 5 7 Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules: An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice and shall, on taking up any such employment intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment.
June 27, No. Sahil Kanuga. Payel Chatterjee. Mangalore Special Economic Zone Ltd. C , however the first mention of the said term can be seen in The term "Murder" traces its origin form the Germanic word "morth" which means secret killing.
Article 22 2 of the constitution of India provides that any person arrested and detained in custody must be produced before the nearest magistrate within 24 hours of his arrest and no person can be detained beyond the period White Collar Crimes are the type of crimes that are committed by respectable persons, holding enviable positions, either in public or private entities.
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