The Cloak of Legal Professional Privilege

by McGuireWoods LLP

The recent judgment in the case of Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB) is a matter of major concern for companies and those involved in advising them on the best approach to the prospect of investigation by the U.K. SFO. We understand that this English High Court judgment is to be the subject of an appeal, but companies and their legal advisers could consider the practical steps below to minimize the risk of claims for Legal Advice Privilege (‘LAP’) or Litigation Privilege (‘LP’) being unsuccessful.

Step 1: LAP – To deal with the Court’s finding that communications by corporate lawyers with third parties (including employees) who are not authorized to seek or receive legal advice, and therefore not the ‘client’ for privilege purposes, are not covered by ‘LAP’.

The corporate should in advance of any such communication state in writing that the person giving the initial formal instructions to the external investigating lawyer is authorized by the corporate to obtain legal advice on its behalf.

Step 2: LP – To deal with the Court’s finding that a reasonable anticipation of a criminal investigation (as opposed to a reasonable anticipation of a prosecution or other sufficiently adversarial proceeding) does not, without more, constitute a reasonable anticipation of litigation for the purpose of establishing LP.

The corporate should formally make a record, if appropriate on the discovered facts, that on the information currently available, it entertains a concern that the material gives rise to a real likelihood of a prosecution of the company, and the purpose of the instructions to the external lawyer is to give advice to the Board regarding such concern.

Step 3: LP – To deal with the same finding as described under ‘Step 2’ above.

The lawyer should indicate in writing whether, on the basis of the information initially provided by the corporate, there would appear to be a reasonable anticipation of proceedings by the SFO.

Step 4: LAP – To deal with the Court’s findings (a) as described under ‘Step 1’ above and (b) that any documents prepared by the lawyer in this context must be with the dominant purpose of providing the corporate with advice as regards the likelihood of future litigation.

If the corporate should decide to instruct the lawyer to proceed with interviews, then in advance of any such interview the lawyer should inform the person to be interviewed that the dominant purpose of the interview is to enable the lawyer to provide the corporate with advice regarding the likelihood of future litigation. The conveying of this information should be the subject of a written record.

Step 5: LAP – To deal with the Court’s finding that a lawyer’s basic record of what a witness said would not attract ‘LAP’ unless it would betray the trend of the legal advice.

Following every such interview, the lawyer should record in writing some form of qualitative assessment of what has been said by the person interviewed, together with any thoughts as to its importance or relevance to the legal advice being sought.

We do not suggest that pursuing these five steps will guarantee that in any individual case the SFO or the Court would be persuaded that interviews and lawyers’ ‘working notes’ fall within the protection afforded by Legal Professional Privilege – each case will depend on its facts. However, adopting this procedure may provide both corporates and lawyers with a good chance that the material in question will properly carry the cloak of privilege.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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