Legal Privilege and Covid-19 - Part I

Part I discuses the concept of attorney-client privilege, work product doctrine and the legal position in the US and the UK.

Legal privilege and attorney work product

The legal privilege or attorney-client privilege is often regarded as the crown jewel of the legal profession. It provides protection from disclosure of communications between a client and an attorney made for the purpose of seeking legal advice.

Legal professional privilege protects all communications between a professional legal advisor i.e. a solicitor, barrister or an attorney and their client from being disclosed without the express permission of the client. The privilege of protection is of the client and not that of the attorney. Legal privilege protects an individual’s right to access justice by encouraging an open and complete discussion between an attorney and a client, who is not only shielded -from disclosing such communication but can also claim subsequent prejudice due to the disclosure.

The earliest known instance of the principle of legal privilege in English common law dates back to 1577, where in the case of Berd v. Lovelace[1], where the Court refused to compel the attorney to depose against his client. The position was further cemented in Greenough v. Gaskell[2] where Lord Brougham observed that in the absence of privilege, a client would not be able to fully disclose the facts to his attorney, which in turn would hinder his ability to seek legal advice.

What really is Attorney Work Product?

The attorney work product is more inclusive than legal privilege. The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of a legal representation, especially when prepared for the purpose of litigation.

Generally, there are two types of work product: opinion work product and ordinary work product. Opinion work product includes an attorney’s mental observations, notes on key issues, and documents reflecting potential strategies. Ordinary work product includes information distinct from legal analysis, such as witness interview transcripts, reports of non-testifying experts and financial records from the client.

In the landmark case of Hickman v. Taylor[3], the US Supreme Court recognised the work product doctrine and held that the materials prepared by a party’s attorneys in anticipation of litigation or for the purposes of litigation be protected from the scope of discovery under the Federal Rules of Civil Procedure. The US Supreme Court ruled that “not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.”

The legal position on work product doctrine in India is similar to the English law position. The Bombay High Court, in Larsen & Toubro Ltd v Prime Displays (P) Ltd.[4], while deciding a petition for winding up filed by the respondents against the petitioner company, held in favour of the petitioner company that attorney-client work in anticipation of litigation is entitled to protection under Sections 126 and 129 of the Act. All documentation created (whether tangible or intangible) and communication between a client and an attorney in anticipation of litigation will be privileged communication, including any communication for the purpose of securing advice for the litigation; for obtaining or collecting evidence to be used in the litigation; and for obtaining information that will lead to such evidence, drafts of notices, pleadings and so forth, exchanged between the attorney and the client.

Information called for by the client and provided by an employee or a third-party agent, on the request of, and for the purpose of submission to, the attorney may also be protected.[5]

Unlike the legal privilege, which generally refers to communications between an attorney and a client, the work product doctrine often includes materials prepared by persons other than the attorney, as long as they were prepared for ongoing or potential litigation. This goes on to show that attorney work product doctrine covers a more comprehensive track than the legal privilege.

Legal Position in the US[6]

Under US law, legal privilege generally protects communications between in-house or external counsel and their clients that are intended to be and are kept confidential; and that are made for the purpose of seeking or obtaining legal advice or assistance.

In Colton v. United States[7], the US Supreme Court recognised the principle of legal privilege and held that any attorney-client communication made for the purpose of securing legal advice cannot be disclosed. Further, in Upjohn Co. v. United States[8], the US Supreme Court held that the privilege ensures confidentiality of attorney-client communication allowing for the client to fully disclose the facts and circumstances of his/her case and allow the attorneys to provide a complete and effective advice. It may be noted that in order to be privileged, the communication has to be with an attorney on a legal issue.

However, due to its federal nature, the position on legal privilege may vary across states in the US.

Legal Privilege in the UK[9]

Under English Law, the concept of privilege is recognised as a fundamental legal right which allows individuals and corporations to resist disclosure of sensitive and confidential information in context of dispute resolution and investigation. English law does not distinguish between the application of privilege with regards to in-house counsel and practising attorneys. In England and Wales, the rules on legal professional privilege are set out in common law.

Under English law, two types of privilege exist – viz., legal advice privilege and litigation privilege. There are strict rules governing application and scope of privilege under English law.

Legal advice privilege protects any written or oral confidential communication between an attorney and the client where such communication is for the purpose of providing or receiving legal advice. Legal advice privilege also extends to documents that refer to such communication.

The English law on privilege is extremely specific. For the privilege to apply, it is imperative that the communication should be with an ‘attorney’. Further, communication done with the ‘client’ alone qualify as privileged. To illustrate the preceding statement by way of an example, where an attorney communicates with employees of a company (the client in this case), such communication may not necessarily be privileged. The English law rules restrict the scope of the term ‘client’ to include only those individuals who are duly authorised to provide instructions and seek legal advice.

Litigation privilege protects confidential written or oral communications between the client and an attorney and third parties or other documents created on behalf of the client or the attorney in contemplation or subsequent to commencement of litigation for the purpose of being used in such litigation or arbitration. The scope of litigation privilege is wider and may include communication or documents prepared by non-legal consultants or advisors. However, it requires that there must be more than a mere possibility of litigation, or the contemplation of litigation for litigation privilege to apply.

As confidentiality is an integral component of privilege, a loss of confidentiality would also lead to a loss of privilege.

[1] Berd v. Lovelace, (1577) Cary 62.

[2] Greenough v. Gaskell, (1833) 39 ER 618.

[3] Hickman v Taylor, 329 US 495 (1947).

[4] Larsen & Toubro Ltd v Prime Displays (P) Ltd., [2003] 114 Comp Cas 141 (Bom).

[5] Woolley v North London Railway, (1868-1869) LR 4 CP 602.

[6] Please note the Cyril Amarchand Mangaldas is not qualified to practice law in the USA and the above legal position does not construe a legal advice or create an attorney-client relationship. In case you require legal assistance, please consult a qualified attorney in your jurisdiction.

[7] Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962).

[8] Upjohn Co. v United States, 449 US 383 (1981).

[9] Please note the Cyril Amarchand Mangaldas is not qualified to practice law in the UK and the above legal position does not construe a legal advice or create an attorney-client relationship. In case you require legal assistance, please consult a qualified attorney in your jurisdiction.