As a general rule, communications to which legal advice privilege applies (and therefore not required to be made available for inspection to the other side during the disclosure stage of a dispute) must be:
- made in confidence
- by professional legal advisers, and
- with the dominant purpose of providing legal advice
The relevant case (PJSC Tatneft v Bogolyubov & Ors) has recently clarified the second point above by confirming when foreign lawyers are deemed ‘professional legal advisers’ for the purposes of this test.
‘Professional legal advisers’, in relation to English lawyers, is broadly interpreted as meaning a member of the legal profession. This therefore includes, barristers, solicitors and in-house lawyers, amongst others. The court’s position is not confirmed in relation to advice given by unqualified English lawyers, but it is suspected that unqualified and unsupervised lawyers’ advice would not attract the protection of legal advice privilege.
However, in relation to foreign lawyers, Tatneft stated that confidential legal advice given by a foreign lawyer would be privileged provided they are acting in the capacity or function of a lawyer. This would be the case regardless of the foreign lawyer’s training, qualifications and whether they are otherwise registered or regulated in their jurisdiction.
Therefore, in Tatneft, the foreign in-house lawyer’s advice was privileged and could not be inspected by the other parties to the litigation, regardless of the agreed fact that the lawyer’s advice would not have attracted the same privilege in their own jurisdiction on account of being an in-house lawyer.
The court confirmed it would not cause uncertainty and raise issues of comity by examining particular national standards or regulations to determine if a lawyer’s communications were protected. Instead, the relevant point being the ‘function of the relationship’ and not the ‘status of the lawyer’ in the case of foreign legal advisers.
In terms of practical advice, clients with legal functions in foreign jurisdictions can be satisfied that their communications with those foreign lawyers, including in-house lawyers’ advice to colleagues, will be privileged and therefore restricted from being inspected by other parties in a dispute In England and Wales, whatever the precise local rules as to legal privilege. This protection can be bolstered by clearly showing that the advisor is acting in the capacity or function of a lawyer. Practical ways to assist in this include:
- ensuring the foreign lawyer’s email sign off includes a reference to their role as a legal advisor
- referencing that role as legal advisor in meeting notes
- as with advice within this jurisdiction, taking care to separate legal and non-legal matters into separate communications – one way to lose privilege even in this jurisdiction can be when insufficient care is taken around multi-purpose communications to multiple recipients
- educating and reminding senior management of the importance of maintaining privilege, and how to achieve this