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If you find yourself facing a legal dispute, it is important to know about the rules on legal professional privilege. In particular, solicitor-client privilege is likely to be relevant to you. This article will explain what the law of privilege is more generally. It will then touch on some relevant rules on solicitor-client privilege.
What is Privilege?
Privilege is a legal right that you have to confidentiality, and the law of privilege governs the rules in this respect. For example, you cannot rely on privileged information in court. Furthermore, the other party will not be able to obtain that information through a legal right.
The rules of privilege can apply between lawyers. Additionally, they can also apply in a solicitor-client relationship.
There are two types of privilege. These are:
- legal advice privilege; and
- litigation privilege.
Legal advice privilege applies even if court proceedings have not started and only applies between you and your lawyer. Litigation privilege, however, applies during a court proceeding.
What is Solicitor-Client Privilege?
Solicitor-client privilege is the privilege that you enjoy during communications with your lawyer when seeking legal advice. It also only applies if you are talking to a lawyer about legal advice. Therefore, it does not apply if you are talking to the lawyer outside of their professional capacity. This privilege belongs to you alone, and only you can waive your right to this privilege. This means that your lawyer is not allowed to talk to anyone about your communications (outside of the law firm) without your permission.
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How Long Does it Protect Communications?
When solicitor-client privilege applies, it will apply to the relevant communication permanently. This means that your lawyer is not allowed to talk about your communication or any other confidential information about you to anyone, even if your stop using their legal services.
When Does Solicitor-Client Privilege Apply?
This privilege will apply if you intend the communication to be confidential. This means that if there is a third party in the room during your conversation, you may not be taken to intend to make a confidential communication. Notably, solicitor-client privilege can apply in oral conversations and in writing.
When Does Solicitor-Client Privilege Not Apply?
This privilege may not apply in some cases. Firstly, the privilege is lost if you disclose the confidential information to a third party voluntarily, or if you disclose information to someone who has a joint interest with the other party to the litigation.
Secondly, if the communication relates to a plan to commit a further crime, or if the privileged information itself is a crime, then the privilege rule will not apply.
Thirdly, if the disclosure is necessary to prevent a wrongful conviction, then your solicitor may have the power to disclose it to the court.
Finally, if your solicitor thinks that public safety concerns override the privilege rule, they must report it. This would apply if your solicitor has ‘reasonable grounds to think that there is an imminent risk of death or serious bodily harm to an identifiable person or group of persons’.
In addition, the law of privilege only applies to ‘communications’ – not to the fact that something has happened.
Key Takeaways
If you are getting legal representation as part of a court case or in the lead up to a court case, then certain communications will benefit from the rules of privilege.
The rules of privilege mean that the court cannot use certain communications if you decide against doing so. In line with this, a court cannot oblige you to disclose privileged information. Additionally, you will not be judged about your decision to withhold privileged information.
For solicitor-client privilege to apply, you must first have a communication. You can make a communication orally or in writing. Importantly, it must be an exchange between you and your lawyer. However, you can lose your solicitor-client privilege in certain situations, such as if:
- you disclose the information to a third party;
- the confidential communication was about a crime that may be committed in the future; or
- the communication itself was criminal.
On the whole, it is a good idea to ask your lawyer about your position in relation to privileged information, so you do not accidentally lose your privilege by disclosure to a third party. Our experienced contract lawyers can assist you as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today at 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Privilege is the area of the law that deals with confidential information which is usually inadmissible in court.
Disclosure is when you give away information. It also has a technical meaning, being the ‘disclosure process’ during a litigation. This is where both parties give each other information so that you go to court and both parties are able to best prepare their case.
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