'Legal professional privilege' 1: legal advice privilege

By Paul England

‘Legal professional privilege’ is a general expression that covers two principles of English law: (1) legal advice privilege and (2) litigation privilege. The former attaches to communications between solicitor and client only, but the latter can protect reports by third parties prepared on the instructions of a client or lawyer for the purposes of litigation. In the former case, the privilege protects all communications whether related to litigation or not, but in the latter case it protects only those documents or other written communications prepared with a view to litigation. This note explains legal advice privilege.

Legal advice privilege covers confidential communications between a lawyer and the lawyer’s client that come into existence for the purpose of giving or obtaining legal advice. It comes into existence without regard for whether litigation is contemplated or pending. Furthermore, legal advice privilege comes into being for communications between client and solicitor, whether made directly or through an agent. This privilege protects these documents against a demand from a third party during litigation for production and inspection.

To attract legal advice privilege, the communication must have the dominant purpose of the giving or receiving of legal advice. However, legal advice is broader than advice on the state of the law…

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