As a general rule, whatever you discuss with your lawyer is covered by the security blanket of “legal advice” or “litigation” privilege – in other words, it stays confidential and you do not have to disclose it to your opponent if you later become involved in litigation. The reason that privilege exists is to ensure that clients feel able to talk freely and openly to their lawyers.
The leading case what is and isn’t covered by legal advice privilege goes by the catchy name of Three Rivers No 5, which has given rise to all kinds of clever lawyerly puns about there being “many rivers to cross” in order to establish legal advice privilege. Three Rivers says that if a document is created for the dominant purpose of obtaining legal advice, it is privileged. In December 2016, a high court judge made a worrying ruling that restricted Three Rivers legal advice privilege to only cover communications between a lawyer and those individuals who are authorised to seek and obtain legal advice on behalf of the organisation. The judge held that legal advice privilege does not extend to employees who are authorised only to provide information to the lawyers, even if the lawyers need that information to be able to advise the company. It had been hoped that the claimant in this case (RBS) would appeal the decision to the Supreme Court, but RBS’s lawyers have confirmed that the appeal has now been dropped.
What is even more worrying is that the judge in the RBS case suggested that the Three Rivers test should be even further restricted to those who are the ‘directing mind and will’ of the organisation.
We always advise clients to ensure that they restrict communications with lawyers to a core team of directors or senior managers who have responsibility for resolving a particular legal issue or potential claim. This recent judgment makes that advice all the more important.