- William Kanaan
Legal advice privilege extends to in-house foreign lawyers
The Commercial Court has refused an application for the disclosure of communications between the claimant and members of its in-house legal department in Russia.
The Court held that:
legal advice privilege extends to communications with foreign lawyers;
foreign lawyers do not have to be working in-house, provided they are acting in the capacity or function of a lawyer. It is the "function" of the relationship and not the "status" of the lawyer which is relevant in the case of foreign legal advisers; and
there is no additional requirement that foreign lawyers should be "appropriately qualified" or recognised or regulated as "professional lawyers". It would lead to uncertainty (and therefore inconvenience) if, even where the relationship of lawyer and client subsists, the court had to go further and examine particular national standards or regulations in order to determine whether a party was protected from the disclosure of their communications with their lawyer. It would also raise issues of comity if the court was obliged to express views on the qualifications and regulation of foreign lawyers.
The starting point for considering legal advice privilege is that it is in the public interest that clients can obtain legal advice and that these communications should be kept confidential.
As the court will not investigate whether a foreign lawyer is regulated or registered, the same should apply to foreign in-house lawyers, as they are "in the same position as those who practise on their own account".