Respecting Legal Professional Privilege

The Law Society has urged the government to ensure that the application of powers to snoop on communications respects legal professional privilege.

Commenting on a consultation on codes of practice under the Investigatory Powers Act 2016, Society president Robert Bourns said: ‘Legal professional privilege is the cornerstone of the trusting relationship between a solicitor and their client and intrinsic to the administration of justice, which is why we have fought and will continue to fight to ensure that the law provides appropriate protections.’

Chancery Lane has also published a practice note to ensure solicitors understand legal professional privilege – increasingly being seen as an ‘inconvenience’, the Society said. While LPP is vigorously protected by the courts and reflected in a range of legal provisions, proposals to combat crime, increase consumer choice and improve regulation all threaten to undermine its protections.

Bourns said: ‘This growing trend to see LPP as something of an “inconvenience” to be surrendered is a critical threat to the ability of clients to work openly and honestly with their solicitor, which is why the Law Society has responded so firmly in each case.

‘While we have had considerable success working with government to find ways to meet its public policy objectives while protecting LPP, such as with amendments to the Investigatory Powers Bill, we cannot do this alone.’

Legal professional privilege protects all communications between a solicitor or barrister and their clients from being revealed without the client’s permission.

The practice note states that the fact that LPP is a right can be overlooked. ‘It is a right, not of lawyers or the legal profession, but of our clients – whether individuals or corporates,’ it says.

Applying LPP to communications made in connection with internal investigations by corporations and regulated firms ‘requires care’.

LPP does not arise in relation to assistance with a crime, fraud or equivalent conduct (the ‘iniquity exception’).

Bourns said: ‘The whole solicitor profession must make sure it understands LPP, that clients understand LPP and the rights it gives them, that solicitors uphold it in their work and must be beyond reproach in their application of it if the justice system is to function properly.’