The only person who cannot be ordered to say what they have been told by a client is a lawyer. No one else, not priests not doctors not accountants can simply refuse to answer the questions. But it does not apply to anything said to a lawyer so let’s explore when you can feel safe telling us stuff or conducting investigations internally.
There are two types of legal professional privilege, legal advice privilege and litigation privilege. In this issue, I look only at the first.
I’ll start with a story from my past when I did criminal law in Birkenhead. One of my regulars (let’s call him Dave) wrote to me from prison asking for advice. I went to see him. A mate of his (John) had shown him the transcripts of his trial for burglary and asked if Dave thought he should have been convicted on that evidence. “No”, said Dave, “because I did it”. John’s lawyers asked Dave if he would admit it. He called for me. I told him if he did he would be tried and get yet another conviction so he kept quiet. I bumped into John’s legal team at court one day. They told me they knew I had been to see Dave and that they would call me to give evidence of what Dave had said. “You can’t” I gloated. “Legal professional privilege”. They argued it did not apply. I was right, of course. Because my visit to Dave and our conversation was for that purpose, namely advice on whether to confess, it was protected. If I had been seeing him about something else and he had mentioned it in passing, privilege would not apply. (There was a happy ending for John. His team told the appeal Judge what had happened and the judge found another way of allowing the appeal. However, the whole story rather damaged my faith in the jury system. Give me commercial cases any day.)
Why does this matter?
Given the more attentive approach these days to corporate governance, businesses are more likely to investigate themselves to see if anything is wrong and/or to take advice. Can someone (police? Taxman? Insolvency Service) investigating one of my clients demand to see what I have been told or advised or what the client has found out for themselves? The answer is “sometimes”. Let’s look at the relevant elements.
Who is the client?
Companies operate through humans. Not every employee is the client for the purpose of privilege. It would be a small group of individuals who are selected to give the information and get the advice. So we are looking at the board and the internal legal team and maybe senior managers.
What a company does internally to investigate itself will almost certainly not be privileged. Unless the lawyer does it (or it is in contemplation of a specific piece of litigation).
I have often seen investigations carried out by accountants into tax issues conducted through lawyers so that they are protected.
But be careful, just because something has been told or given to a lawyer it is not automatically protected. If is was not privileged before, it will not change its status.
Investigations often involve talking to the staff. If you want to interview employees have your lawyer present and make sure:
Other companies within a group may fall into the investigation. The information will only be privileged is the other company is a “client”. Make the subsidiary a client of the lawyer BEFORE getting the information.
Moral of the story?
Use us to your advantage. It may well be a saving not a cost.