The Law Society’s new draft guidance on privilege

The draft guidance is part of Law Society's response to the growing threats posed to privilege. It is designed to remind the profession of the circumstances in which privilege is available and the importance of the need to assert it when it is proper to do so.

I am conscious that it is some time since I posted a blog on privilege developments, although there have been a lot of recent privilege decisions, some of which I plan to cover in the ensuing months.

A subject I wanted to tackle in this short blog is The Law Society’s new Draft Guidance on Privilege, which can be found here.

Before discussing this Guidance, it is worth noting the comments of the current President of The Law Society, Robert Bourns, who wrote an interesting article in The Law Society Gazette a few days ago called “Standing up to Attacks on LPP”. A link to the article can be found here.

I know Robert well and so I am pleased that, notwithstanding the demands of his role, he has found the time to stand up on behalf of the profession to try to counter a range of threats to legal professional privilege. As he says, LPP is at the very heart of the relationship that solicitors have with their clients and it is therefore with growing concern that The Law Society has responded to a range of threats to this vital legal concept in recent months, as well as challenging a growing inclination to misrepresent and denigrate the principle of privilege.

Robert’s article addresses the threat to privilege which is still posed by the Investigatory Powers Bill (back before Parliament next month), the consultation by The Financial Conduct Authority on the way senior in-house solicitors might be covered by its new accountability regime (The Senior Managers Regime) and also the tendency of parliamentary committees (the one investigating the collapse of BHS being the most recent one) to criticise legal witnesses for refusing to waive their clients’ privilege.

So many of these attacks ignore the fundamental principle that the privilege belongs to the client and not the lawyer, and that it is not so straightforward just to say that lawyers hide behind the privilege.

An additional area where The Law Society, supported by a number of private practitioners (myself included), has been working to protect privilege from threats to its long-standing status concerns the Law Society’s draft Guidance on Privilege. This is designed to provide an easy reference point for the main principles that underpin privilege and thereby to remind the profession of the circumstances in which privilege is available and the importance of the need that we, as a profession, only advise our clients to assert it when it is proper to do so. Why is such Guidance needed? Surely as lawyers we should know the do’s and don’ts of privilege? Guidance has been produced in the main in response to attempts by some of our regulatory authorities, most notably the SFO, to create a climate in which certain clients, particularly in the financial services sector, feel inhibited from asserting privilege, even though in doing so they are legitimately exercising an ancient and well established right. Those attempts are plainly wrong, and so I hope that this Guidance will signal to our regulators that the profession, backed by its primary professional body, is willing to stand up and push back.

The Guidance is still under consultation so any commentary on it would be welcomed by The Law Society. I will also be speaking on it at a number of client dial-ins in the coming weeks.

If anyone would like to discuss the Guidance with me and the reasons for its creation, please do get in touch.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.