Is your legal advice privileged? Be a confident client

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Is your legal advice privileged? Be a confident client

Lawyers give a whole host of legal advice every day – it is literally the job description. Once given, that advice belongs to solely to the client. Legal advice privilege protects confidential advisory communications between a lawyer and their client from being shared with the courts and other third parties. This right to communicate with lawyers in confidence is more than just protection but fundamental to the administration of the justice system as a whole. Some recent employment cases, however, have considered when this right may be waived and where iniquity may frustrate its application. If you want to be a confident client it is worth knowing how to avoid these situations.

Curless v Shell International Limited (2019)

There are two ways legal advice privilege can be lost:

  • If the advice is iniquitous and privilege would therefore contravene public policy; and
  • If the privilege is waived by the client.

In the Curless case, an email from Shell’s lawyers had been leaked following Curless’ termination which he alleged contained iniquitous advice that should be admissible as evidence. Additionally, he submitted that he had overheard discussions revealing ulterior, potentially unlawful motives behind his termination. The Court of Appeal found that the email itself contained advice on the risks of certain courses of action but did not advise taking any specific course of unlawful action. The email therefore remains protected by legal advice privilege which also cannot be “tainted by a conversation involving gossip”.

Kasongo v Humanscale UK Ltd (2019)

Only the client is able to waive their own legal advice privilege. This can occur in a number of ways:

  • The confidentiality of the communication may be lost;
  • An intentional waiver, for example by producing privileged material at court; or
  • An unintentional waiver.

This final scenario was the basis of the recent Kasongo case. Humanscale disclosed a number of documents in support of their assertion that they were unaware of Kasongo’s pregnancy when they dismissed her. Among these was a draft dismissal letter with some of their lawyers’ comments redacted. The Employment Appeal Tribunal found that these comments formed part of the same transaction and that the employer could not ‘cherry-pick’ their disclosures. As such, by waiving privilege to the related documents Humanscale had also waived privilege to the lawyers’ comments.

The important take-away from these cases is that it is worth cooperating with your legal advisers throughout each matter to ensure communications are clear and kept confidential. In particular, if you find yourself involved in disclosure you should seek advice on what documents are covered by privilege and what will need to be produced. If you would like to know more about legal advice or other rights of privilege you can feel confident contacting our employment team.

For more information please contact our Employment Team:

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Amelia Wheatstone – Solicitor 

Adam McGlynn – Trainee Solicitor

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