Industry News

All calls will be recorded: the gradual erosion of Legal Professional Privilege

19 February 2012

In what was perhaps indicative of today’s trend for transparency, the government recently rejected pleas from the profession to safeguard an individual’s right to legal professional privilege by opposing (without a vote) a proposed amendment to the imminent Protection of Freedoms Bill. Following widespread criticism, the decision has been defended on the grounds that the ability to monitor communications may enable intelligence and law enforcement agencies to intercept information that could prevent a serious crime or terrorist attack.

The move does not, however, come as a total surprise as the right to speak to a lawyer in private without compromising one’s position has been outweighed in recent years by duties of disclosure and public interest arguments. In the 2009 case of In Re McE, it was held that the Regulation of Investigatory Powers Act (RIPA) 2000 could be extended to allow the surveillance of lawyer-client conversations, regardless of whether there is evidence to suggest that the right to privilege is being used as a means of furthering criminal activity.

There have been several other key cases where judges have displayed a reluctance to extend the right to privilege afforded to solicitors and barristers. As well as the Court of Appeal ruling in the 2010 Prudential case that accountants advising on the laws of taxation may not rely on legal professional privilege (a decision which will be reviewed by the Supreme Court in November of this year), the General Court of the European Union refused to entertain an application late last year simply because it had been made by in-house lawyers (see Case T-226/10 Prezes Urzedu Komunikacji Electronicznej). This follows the Akzo case where - in September 2010 - the European Court of Justice (ECJ) upheld the General Court’s 2003 decision by declaring that in-house lawyers may not benefit from privilege during any investigations of their employer by the European Commission into anti-competitive behavior.

Unfortunately, there are reasons why members of the profession often disregard the client’s right to privilege in order to protect themselves, most notably in relation to reporting suspicious activity to the Serious Organised Crime Agency (SOCA). When facing the possibility of a criminal sanction, how many lawyers could say – hand on heart – that they would comply with SRA Principle 1 i.e. to uphold the rule of law and the proper administration of justice by respecting the client’s right to privilege? For the sake of privilege, it is hoped that the proposals contained in the consultation on the Money Laundering Regulations are followed through the decriminalisation of two dozen criminal penalties.

In addition, the increasingly frequent requests for closed files from third parties are fostering feelings of paranoia amongst the profession. Instead of asking: “Are they entitled to my client’s file?” lawyers are often asking: “Will there be any allegations of negligence or misconduct if I release that file?” Again, it is the desire to protect oneself, coupled with apathy towards the right of legal professional privilege, that begs the question: is it in the client’s best interests to disclose potentially privileged information?

Legal professional privilege has been described by Law Society Chairman Des Hudson as a ‘fundamental human right’, but the arguments of the profession’s representative body might be more persuasive if they were supported by the SRA, who seemingly have no appetite to pursue any regulatory breaches pertaining to privilege. Further, the recently-adopted SRA Handbook contains a plethora of duties to disclose information to the SRA or to clients upon request; and while the handbook purports to be consumer-focused, the regulator seems to afford minimal protection to one of the most basic rights of an individual seeking legal advice.

Finally, legal professional privilege may be a highly technical and largely inaccessible area of law, but that is not to say that it is no longer relevant or that it should be disregarded without exceptional circumstances. A client’s right to legal professional privilege without fear of intrusion compromising their position is paramount and should always be carefully measured against any obligations to disclose potentially privileged information. However, apathy on the part of the profession towards the common law right – fuelled by crippling sanctions for non-cooperation and failure to disclose – has led parliament to conclude that it is not worth protecting.

Ian Braithwaite
Client Relationship Manager

T: 0845 056 3949
M: 0743 727 4046

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