Overview
This practice note seeks to:
- clarify the status of legal professional privilege (LPP)
- explain the main principles of LPP
- summarise practitioners’ duties
- explore particular contexts in which the rights conferred by LPP are asserted
It only applies to the law in England and Wales. It is not intended to be a substitute for detailed research on this complex area of the law.
This practice note is the Law Society’s view of good practice in this area, and is not legal advice. For more information see the legal status.
Introduction
What is LPP?
Legal advice privilege
Litigation privilege
Exceptions: where LPP does not arise
Has LPP been abrogated by Parliament?
Has LPP been defeated by the client's actions – the crime-fraud exception?
What to do in the event of a suspected abuse of the retainer
Obligation to assert LPP
Absolute nature of claims to LPP
Has LPP been waived or lost?
Aspects of LPP in practice
LPP protections outside England and Wales
Practice notes represent the Law Society’s view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, and do not necessarily provide a defence to complaints of misconduct or poor service. While we have taken care to ensure that they are accurate, up to date and useful, we will not accept any legal liability in relation to them.
For queries or comments on this practice note contact our Practice Advice Service.
SRA Principles
There are seven mandatory principles in the SRA Standards and Regulations which apply to all aspects of practice. The principles apply to all authorised individuals (solicitors, registered European lawyers and registered foreign lawyers), authorised firms and their managers and employees, and to the delivery of regulated services within licensed bodies.
Must – a requirement in legislation or a requirement of a principle, rule, regulation or other mandatory provision in the SRA Standards and Regulations. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or regulations.
Should – outside of a regulatory context, good practice, in our view, for most situations. In the case of the SRA Standards and Regulations, a non-mandatory provision, such as may be set out in notes or guidance.
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best route to meet the needs of a particular client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why your alternative approach is appropriate, either for your practice, or in the particular retainer.
May – an option for meeting your obligations or running your practice. Other options may be available and which option you choose is determined by the nature of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.