In-House Counsel Masterclass:The CPD Regulatory Hour

MHC.ie

Welcome

Declan Black

Managing PartnerMason Hayes & Curran

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Introduction

• Guide to Good Professional Conduct for Solicitors

• Chapter 4 – Legal Professional Privilege & Confidentiality

• Flyer

• Q&A

• Conversation not over!

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Legal Professional Privilege

Niall Michel

PartnerMason Hayes & Curran

email: nmichel@mhc.ie

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What does the Guide tell us?

• Describes LPP rule

• Solicitor’s duty of confidence wider than LPP

• “Fundamental feature” of administration of justice

• Remember to assert LPP, including in AML and Tax

contexts

• LPP can be lost or waived

• Exceptions to LPP

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Fundamental Feature of Administration of Justice

• “… more than a mere rule of evidence…a fundamental

condition on which the administration of justice as a whole

rests.”

• Why?

• Rooted in balance of public interests

• Adversarial system

• Always a context

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Confidentiality vs LPP

• Solicitor’s duty of confidence has wider coverage than LPP

• All privileged communications are confidential

• Not all confidential communications are privileged

• Context determines maintainability of DOC

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What is covered by LPP?

• 2 limbs to LPP rule

• Legal advice privilege

• Litigation privilege

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Elements of Legal Advice Privilege

• Confidential

• Communications

• Between client and professional legal adviser

• In course of professional legal relationship

• For purpose of seeking or giving legal advice

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Elements of Litigation Privilege

• Confidential

• Communications

• Between

• client and lawyer

• lawyer and third party

• client and third party

• With dominant purpose of preparing for reasonably

apprehended or actual litigation

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LPP can be Lost or Waived

• Loss

• Waiver – express or implied; partial or whole

• Avoiding implicit waiver

• Common interest

• Implicit waiver not lightly found, but can happen:

• Deploying contents in pleadings; affidavits/evidence

• Putting contents in issue

• Sending to adversary

• Inadvertent disclosure

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Exceptions to LPP

• Where balance of public interests changes

• Communications

• In furtherance of crime, fraud or “moral turpitude”

• In furtherance of conduct injurious to interests of justice

• Where disclosure in best interests of a child in proceedings

• Where disclosure would establish innocence

• As between parties with common interest

• As between parties enjoying joint privilege

• If statute so provides

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Where LPP does not Apply

• Communications intended to be repeated to adversary

• Actual communications with adversary in contemplation of

litigation

• Facts “patent to the senses” vs facts communicated

• Pre-existing, non-privileged, documents sent to lawyer

• [In-house counsel only]: to communications relevant to EU-

led competition investigations/proceedings

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Duration of LPP

• ‘Once privileged, always privileged’?

• Legal advice privilege

• Litigation privilege

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Thank you for your Attention!

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The Solicitor’s Relationship to the Court & other Matters

Emily Egan McGrath BL

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Q&A

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