Lord Neuberger delivers speech on legal professional privilege

President of the Supreme Court, Lord Neuberger, delivered a speech yesterday at a meeting in London in support of the charity Youth at Risk.

In his remarks, Lord Neuberger briefly set out a number of areas of legal professional privilege and how challenges can arise for practitioners in the context of internal investigations where a regulator, prosecutor or other entity then asks for associated documents.

He began by discussing issues thrown up by cross-border co-operation in crime, saying: “In this jurisdiction, discussions frequently take place between lawyers for co-suspects or for co-defendants under the protection of common interest privilege, which applies ‘to documents … passing between persons who have a common interest in advancing … or in defending proceedings brought or contemplated by another, who seeks disclosure of the documents for use in the proceedings’. By contrast US criminal defence lawyers adopt a more formal approach, which involves entering into a written joint defence agreement (JDA), signed by all parties and setting out what each party agrees to and the consequences of resiling from the JDA.”

Lord Neuberger said many English lawyers have entered into JDAs as they find themselves working more often with American lawyers but added: “The effectiveness of a JDA to accord privilege is an open question and has never been tested.”

He also asked the question of which individuals constitute “the client” when dealing with a large corporate client.

“The effect of the Court of Appeal’s 2003 decision in Three Rivers (No 5) is that LAP does “not apply to documents communicated to a client or his solicitor for advice to be taken on them, but only to communications passing between that client and his solicitor” and associated documents. So, LAP does not appear to attach to communications between the solicitor and employees or agents of the corporate client, other than the individuals actually being advised by the solicitor – eg the chairman, the CEO, the COO, and the CFO, or the executive committee, or a group specially designated by the board or the CEO or chairman. This approach, which gives a rather narrow meaning to the “client”, has not been followed in a number of other common law jurisdictions, where the expression effectively appears to include all employees (and maybe agents) of the corporate client,” he said.

Click here to read the full address.