Legal professional privilege is one of the fundamental protections that distinguishes the legal profession from other advisory relationships. It enables clients to communicate frankly with their solicitors, secure in the knowledge that those communications will not be disclosed to opponents, regulators, or the state without consent. Without it, the right to legal advice would be illusory: clients would self-censor, and solicitors could not provide frank, complete advice.

But privilege is not a blanket protection. It has a specific legal basis, precise requirements, defined exceptions, and significant traps for the unwary. Solicitors who assume that everything they send or receive is protected by privilege — or who fail to take steps to preserve privilege when it is available — can expose their clients to serious harm.

This practical refresher covers the key principles every practising solicitor should keep at the forefront of their minds.

The Two Forms of Legal Professional Privilege

English law recognises two distinct types of legal professional privilege, with different requirements and different scopes.

Legal Advice Privilege

Legal advice privilege (LAP) protects confidential communications between a lawyer and their client that are made for the purpose of giving or receiving legal advice. The key requirements are:

The communication must be between a lawyer and a client — the lawyer must be acting in a professional capacity, and the client must be the person seeking legal advice (not, for example, a third party affected by the advice)
The communication must be confidential — communications that are intended to be disclosed to third parties do not attract privilege
The purpose must be legal advice — the communication must be made for the purpose of giving or receiving legal advice in a legal context, not merely commercial or strategic advice

Legal advice privilege is not limited to contentious matters. It applies equally in transactional, advisory, and regulatory contexts.

Litigation Privilege

Litigation privilege has a broader scope: it can protect communications with third parties (not just lawyer-client communications) and documents created by third parties. But it applies only in more limited circumstances:

There must be litigation that is pending, reasonably anticipated, or actually in progress — litigation privilege does not apply to purely advisory work, even if disputes might theoretically arise in the future
The dominant purpose of the communication or document must be to prepare for or conduct the litigation — if the dominant purpose is something else (such as commercial management or insurance claims handling), privilege will not apply
The communication or document must be confidential

Litigation privilege is particularly important in complex commercial disputes, investigations, and regulatory proceedings. It can protect:

Communications with witnesses
Reports obtained from experts for the purpose of litigation
Internal reports commissioned specifically to address anticipated litigation
Notes of interviews with employees or witnesses conducted by lawyers preparing for litigation

The Legal Professional Privilege Test: Getting the Basis Right

Who Is the “Client” for Privilege Purposes?

In an individual retainer, the client is obvious. In a corporate retainer, it is more complex. The Supreme Court confirmed in Balabel v Air India [1988] and in later cases that communications must be with the “relevant legal entity” — the corporate client — and not with any employee or officer outside the scope of the retainer.

Where a company has a large legal team and multiple business units communicating with external solicitors, it is important to establish clearly who is authorised to seek and receive legal advice on behalf of the company. Communications with employees who are not part of the instruction — no matter how senior — are not automatically protected.

The Dominant Purpose Test in Litigation Privilege

The “dominant purpose” test (derived from Waugh v British Railways Board [1980]) requires that the dominant purpose of a document — not merely one of its purposes — is litigation. In practice, this is often the most contested issue in privilege disputes.

Documents prepared for dual purposes — for example, an accident report prepared both to investigate the cause of an incident and to prepare for anticipated litigation — will only attract litigation privilege if litigation was the dominant purpose. In Waugh, the House of Lords found that a joint inquiry report prepared partly for safety improvement and partly for litigation was not privileged, because safety improvement was an equally dominant purpose.

Solicitors advising clients on document creation in the context of anticipated litigation should ensure that the instruction to create any potentially privileged document clearly establishes litigation as the dominant (not merely a) purpose.

Common Privilege Traps

Copying Non-Privileged Material into a Privileged Communication

A common misconception is that forwarding a non-privileged document to a solicitor with a covering note requesting legal advice makes the document itself privileged. It does not. Legal advice privilege attaches to the lawyer-client communication (the note requesting advice, and the advice itself), but does not extend to the underlying document. If the underlying document would have been disclosable in litigation, attaching it to a privileged email does not protect it from disclosure.

Waiver of Privilege

Privilege belongs to the client, not the solicitor, and can be waived — expressly or by implication — only by the client. Once waived, privilege cannot generally be restored. Common situations in which waiver occurs:

Express waiver: the client discloses a privileged document to a third party, intending to waive privilege. This occurs when settlement negotiations involve disclosure of legal advice, or when a party produces privileged documents in litigation intending to rely on them.

Implied waiver: a party’s conduct is inconsistent with maintaining privilege. In B v Auckland District Law Society [2003], the Privy Council confirmed that partial disclosure can result in waiver of the entire subject matter — sometimes described as the “cherry-picking” problem. A party who relies on part of a privileged communication to establish a point may find that privilege over the whole communication is lost.

Without prejudice privilege: while not technically legal professional privilege, solicitors sometimes confuse the two. Without prejudice privilege protects settlement communications from being adduced in evidence, but it does not prevent a court from considering whether the communication was genuinely a bona fide attempt to settle.

Third Party Communications and Confidentiality

If a client shares a privileged communication with a third party — for example, sending the solicitor’s advice to an accountant or business partner — privilege may be lost. The sharing must be consistent with maintaining confidentiality. Sharing with parties who have a common interest (such as co-defendants, related companies in the same group, or parties to the same transaction) may be permissible under the “common interest privilege” doctrine, but this is a limited exception that requires careful analysis.

The Crime-Fraud Exception

Privilege does not apply to communications made in furtherance of crime or fraud. This is not an exception to privilege in the sense of overriding it; rather, communications that facilitate crime or fraud are outside the protection of privilege from the outset, because the policy rationale for privilege — enabling frank communication in the administration of justice — does not extend to facilitating wrongdoing.

The crime-fraud exception was confirmed in R v Cox and Railton (1884) and has been developed in subsequent case law. The exception applies where:

The communication was made for the purpose of facilitating a criminal or fraudulent purpose
The solicitor’s participation in the crime or fraud need not be knowing — the exception applies even if the solicitor was an innocent tool of the client’s fraud

In practice, the crime-fraud exception is most frequently relevant in:

Solicitor involvement in money laundering
Transactions designed to defraud creditors
Fraudulent misrepresentation in commercial transactions
Tax evasion schemes

Solicitors who suspect that their services are being used to further a crime or fraud face a difficult situation: they may be unable to seek advice about their position without creating records that are themselves potentially non-privileged. The appropriate response is to cease acting and, if POCA obligations apply, to consider whether a suspicious activity report is required.

Privilege in Regulatory and Investigation Contexts

SRA Investigations

The SRA is not a court, but it has powers to require production of documents. The SRA’s practice on privilege is set out in its guidance: it recognises legal professional privilege and will not seek to override it by regulatory fiat. However, the SRA has taken the position that documents created for the purposes of an investigation into the firm’s own compliance may not attract privilege.

If the SRA requests documents in the course of an investigation, the firm should review each document individually for privilege, assert privilege where it applies, and provide a privilege log identifying the documents withheld and the basis of the privilege claim.

HMRC Information Powers

HMRC has broad powers under the Finance Act 2008 to require production of documents and information. However, those powers are expressly subject to legal professional privilege. Documents that are genuinely privileged cannot be compelled by HMRC, and HMRC cannot use regulatory powers to overcome privilege that a court would recognise.

The question of what is privileged in the context of tax advice has generated significant case law. Tax advice from a solicitor acting as a lawyer attracts legal advice privilege. Tax advice from a solicitor acting purely as an accountant or tax adviser — without the legal advisory element — does not.

The Crime-Fraud Exception in AML Contexts

The intersection of legal professional privilege and anti-money laundering obligations creates one of the most complex areas of legal practice. The Proceeds of Crime Act 2002 requires solicitors to make a suspicious activity report (SAR) to the NCA if they know or suspect that a client is engaged in money laundering, subject to a “privileged circumstances” exemption.

The privileged circumstances exemption applies to information obtained in privileged circumstances — broadly, information received by a professional legal adviser from a client in connection with the giving of legal advice, or information obtained in connection with legal proceedings. But it does not apply where the information was communicated with the intention of furthering a criminal purpose.

In practice, this means that the SAR obligation applies to AML suspicions arising from the mechanics of a transaction (where the information is typically not privileged), but may not apply to information revealed in the course of genuinely privileged legal advice. The line is not always clear, and solicitors who are uncertain should seek immediate specialist advice.

Protecting Privilege: Practical Steps

Mark Documents Appropriately

Documents that are genuinely privileged should be marked “Privileged and Confidential — Legal Advice” or similar. This is not sufficient on its own to establish privilege (the legal requirements must be met), but it signals the intention to assert privilege and may deter inadvertent disclosure.

Limit Distribution

Privileged communications should be distributed only to those with a need to know. Every additional recipient is a potential point of disclosure. In corporate clients, establish clear protocols for who receives legal advice and who does not.

Train Non-Lawyer Staff

Privilege can be inadvertently waived by non-lawyer staff who do not understand the concept. Business development teams, accountants, and management consultants who interact with legal advice on commercial projects should understand that forwarding a solicitor’s advice email to a third party, posting it in a shared digital workspace, or discussing its contents with a counterparty can destroy privilege.

Conduct Privilege Reviews Before Disclosure

In litigation, the disclosure process is the moment of greatest risk. Privilege reviews must be conducted carefully by a qualified lawyer — not delegated to paralegals or support staff without adequate supervision. Electronic disclosure exercises involving thousands of documents require a clear privilege review protocol.

Obiter keeps communications organised within each matter file, making it easier for solicitors to maintain the clear separation between privileged legal advice and other correspondence that is essential for privilege to operate as intended. When matters progress to litigation or regulatory investigation, the audit trail in Obiter provides a reliable foundation for privilege review. Learn more at obiteros.com.

Legal Professional Privilege: A Practical Refresher for Solicitors