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Legal advice privilege – ‘the client’

Legal advice privilege applies to communications with the ‘client’ (only). But, in a large organisation, how do you define the ‘client’?

The answer was given in Three Rivers [2003] where the CA said that the ’client’ was not the Bank of England as a whole, but a particular group of three individuals within the bank who were responsible for co-ordinating communications with its external lawyers. According to that much-criticised decision, the ‘client’ is defined very narrowly.

That approach has recently been applied in a case involving RBS. It was held that interviews of RBS employees and former employees, conducted by RBS’s in-house and external solicitors, were not privileged – because those employees did not form part of the ‘client’. In the court’s view, the ‘client’ consisted only of those employees authorised to seek and receive legal advice from the lawyers. Accordingly, legal advice privilege did not extend to information provided by employees (and ex-employees) to, or for the purposes of being placed before, a lawyer.

Legal advice privilege is therefore confined ‘to communications between lawyer and client, and the fact that an employee may be authorised to communicate with the corporation’s lawyer does not constitute that employee the “client”’. See RBS [2016] EWHC 3161 (Ch). Source: Olswang.

 

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