Are communications with and documents prepared by non-lawyers protected by privilege?

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English law

  • While “lawyer” under English law is defined widely to include in house lawyers, foreign lawyers (provided that they are admitted to practise in their home jurisdiction), patent attorneys and those supervised by qualified lawyers such as trainee solicitors, paralegals, clerks and legal secretaries, it does not extend to other professionals such as accountants - even where they are providing legal advice on tax issues (R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1).
  • Where a client appoints an agent to liaise with its lawyers on its behalf, whether or not those communications are legally privileged will depend on the role of the agent.
    If the agent is doing no more than acting as a conduit, or channel of communication, between lawyer and client, as a translator or interpreter might do, then those communications may well be covered by legal advice privilege.
  • However, where (as is more usually the case) there is any intellectual input from the agent - for example where a client needs to rely on an agent’s particular expertise in order to be able to provide full instructions to the lawyer - then the agent will not be treated as a mere channel of communication but as a third party, and the communications are unlikely to be protected by legal advice privilege.
  • Communications with non-lawyers will therefore generally be treated as communications with third parties and only be privileged where litigation privilege applies. In addition to the overriding requirement of confidentiality, there are two tests for litigation privilege to apply.
  • The first test is whether litigation is in contemplation or has commenced at the time the document or communication comes into existence. This is a question of fact. Litigation is in contemplation if it is pending, threatened or apprehended, but it must be more than a mere possibility. It is not necessarily sufficient that there is a distinct possibility that sooner or later someone might make a claim.
  • The second test is that the dominant purpose of the communications must be for use in actual or contemplated litigation. The “dominant purpose” has been described as the ruling, prevailing, paramount or most influential purpose, and will be assessed objectively.

US law

  • Under US law, communications with non-lawyers and documents prepared by non-lawyers can be protected under both the attorney-client privilege and the work product doctrine.
  • The analysis is jurisdictional specific. In some US jurisdictions, a non-lawyer communication or document can be protected under attorney-client privilege if the purpose is to facilitate the rendering of legal service by the attorney.
  • Additionally, communications by a lawyer with an agent of the client can be protected if the agent is authorised to speak on the subject matter on behalf of the client. This sometimes happens with public relations firms that are engaged by the client.
  • Even communications with non-lawyers that are not protected by the attorney-client privilege can be protected by the work product doctrine. This works similarly to litigation privilege under English law in that the communication must be made in anticipation of litigation or for trial.
  • The meaning of “in anticipation of litigation” differs between US jurisdictions. In some US jurisdictions, the litigation must be “imminent.” In others, there merely needs to be a credible probability that litigation will ensue.
  • Regardless, the document must also be prepared because of the litigation. This is similar to the dominant purpose test under English law.
  • Unlike English law, the US work product doctrine is not absolute. While “opinion” work product (such as the lawyers’ opinions, theories, mental impressions and conclusions about the litigation) is nearly always protected, “fact” work product (such as factual information prepared or gathered in connection with the litigation) may not be. Fact work product may be discoverable by the other side if they can show a substantial need and an inability to obtain the material elsewhere without undue hardship.