Maintaining legal advice privilege during the Covid-19 crisis

At a time when you need urgent advice to limit the impact of Covid-19 on your business, it is important to ensure that your instructions and the legal advice you receive remains confidential and privileged.

The purpose of legal advice privilege ("LAP") is to provide unrestricted confidence between a client and their lawyer. LAP applies to confidential communications between you and your lawyer which have come into existence for the dominant purpose of giving or receiving legal advice.

Problems can arise when multiple parties, including employees as well as in-house and external advisers, become involved in communications. This may occur because when urgent advice on significant commercial and legal challenges is needed, it is common for an increasing number of people to be copied into email chains and conference calls and for a wide range of topics to be discussed. It may also occur in the current crisis because the usual decision making individuals are unavailable either because they are unwell or self-isolating.

The risks are that:

• Those communications may not be protected from disclosure to other parties in circumstances where they become relevant to the subject matter of a dispute at a later date.
• The individuals providing instructions to lawyers and other advisers may not have proper authority to do so on behalf of the business.

It is important to be aware of this and there are simple steps that you can take to avoid problems at a later date: 

• So far as possible use separate communications to seek advice on legal issues, as opposed to other commercial concerns.
• Try to limit the number of people copied into email chains and included on calls to just those required for the specific purpose of that email/call.
• Remember that having a lawyer copied into communications or in attendance on a call will not in itself provide LAP protection. The relevant test is whether the dominant purpose of the communication is seeking or giving legal advice.
• If you need to delegate responsibility to different individuals within the business, it is important to those individuals have proper authority to provide instructions to advisers.
• Check articles of association as to whether authority can be delegated and to whom.
• Ensure the proper documentation of board decision making and delegation of authority.