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When Are Communications with Your Lawyer Confidential?

november 2004

This year there has been concern about the extent to which communications between a client and the client's lawyer are confidential i.e. exempt from disclosure to any opposing parties or to the Court, should litigation arise later which has a bearing on the subject matter of communication.

The concern was caused by the judgment of the Court of Appeal in one of a series of cases arising out of the failure of BCCI, these being called the "Three Rivers" decisions.

An appeal has now been decided by the House of Lords, who have published their judgment after a period of consideration.

The decision has been very helpful in making it clear that the policy considerations that have insured confidential communications between client and lawyer are as valid today as they have been down the centuries. So, there is no doubt that the Courts recognise the public interest in clients being able to give a lawyer a set of facts and ask for confidential legal advice on the client's rights and liabilities arising from them.

This is an extremely important ruling, which makes it clear that the special status that attaches to communications between client and lawyer (but not between client and any other professional) holds good.
There were, however, some uncertainties left by the decision.

The first uncertainty relates to the precise scope of the advice given by the lawyer which is protected. The Court decided that confidential advice from a lawyer as to what the client should prudently and sensibly do in the "relevant legal context" was protected. It was also clear from statements made by the Judges that advice given by a lawyer concerning purely financial issues (perhaps wearing a "man of business" hat) or about purely personal issues (perhaps as a friend) are not protected. Some uncertainties remain, but clients can be confident that if they go to a lawyer for advice about what is essentially a legal issue, then the conversation will be protected.

The decision was also helpful to clarify that advice given by the lawyer on the presentation of evidence to a Court, Tribunal, or judicial enquiry will be protected. It may seem surprising that this was ever in doubt but the Court of Appeal did question whether advice about the presentation of a clients case could be legal advice for these purposes. This doubt is now dispelled.
More problematic is the doubt that came from the decision of Court of Appeal as to whether, in the case of an organisation, the protection is available to all employees and former employees or not, and if not, where the boundary lies.

The House of Lords expressly declined to clarify the law on this topic, which is unfortunate as it leaves open the possibility that communications on behalf of a company or other organisation, by individuals who are other than proprietors or main board directors or governors might not be protected. In advance of clarification of the law on this issue, all that can be suggested is that care should be taken to ensure that communications with retained lawyers are dealt with by an organisation at the most senior level possible via a person, or a very few people, expressly authorised to give instructions.

key expertise

Andrew Adams
Head of Commercial Disputes Management, Partner
andrew.adams@martjohn.com

David Gwyther
Partner
david.gwyther@martjohn.com

Martineau Johnson's publications are no substitute for taking advice before reaching a decision on your individual problems. If you would like any further information about any of the issues raised in our publications please email us at lawyers@martjohn.com.