Legal professional privilege in England and Wales: 10 tips

  1. Think before creating emails (or any documents) on sensitive issues. Ask yourself whether you need to copy everyone? Should you be pressing forward? Pick up the phone in a crisis instead – and call the legal team. 
  2. Identify the 'client' at the outset for privilege purposes and keep communication lines limited to the 'client' and the external lawyers.
    Read more on this subject:
    Back to basics - Legal professional privilege

  3. Do not assume that all communications with lawyers are privileged. Are you seeking legal advice (which is privileged) or commercial input (which is not)? 
  4. Don’t think that labelling a document 'privileged', 'confidential' or 'off the record' makes it privileged. The substance of the document is what matters, not the header. If it is relevant, recorded and not privileged, it is disclosable. Similarly, if a document is not privileged in the first place, attaching it to a privileged report will not make the attachment privileged. 
  5. Even if a document is privileged in England, it may still be disclosable in foreign proceedings. Remember that concepts of privilege can vary widely in different jurisdictions. Seek local law advice.
  6. Do not destroy relevant documents. This will be extremely damaging. Once litigation is in prospect, suspend any routine document destruction policies. 
  7. Take care if considering providing privileged documents to a regulator such as the FCA. Enter into a non-waiver agreement and be aware that privilege in the documents may be lost in some circumstances, for example if the firm that provided the documents to the FCA later relies on the FCA’s decision in separate civil proceedings. 
  8. If you commission an investigation, consider before the work begins whether any report generated will be privileged or how it can achieve privileged status. Keep detailed notes of the purpose of the investigation. Lawyers should lead the investigation, collect information, conduct interviews and prepare the report. 
  9. If the dominant purpose of a document which potentially has a dual purpose is indeed actual or contemplated litigation, solicitors and their clients should make this very clear on its face. 
  10. Take extreme care if you are considering waiving privilege – seek legal advice.