Who is the "client for the purposes of attorney-client privilege under US law and legal advice privilege under English law?

English law

  • Legal advice privilege under English law protects confidential communications, whether written or oral, between a lawyer and a client for the purpose of giving or receiving legal advice.
  • The definition of “client” is straightforward when dealing with private individuals.
  • In the case of a corporate entity, however, who is the “client” will be a question of fact, and it should not automatically be assumed that the “client” will necessarily extend to all of the management and employees, however senior, of the corporate entity for legal advice privilege purposes.
  • Instead, as a result of the Court of Appeal decision in Three Rivers District Council and Others v Governor and Company of the Bank of England (No 5), [2002] EWHC 2730 (Comm), the “client” is narrowly construed to mean only those individuals within the company who are authorised to instruct the lawyers and receive legal advice on the entity’s behalf on the matter in question.
  • In Three Rivers the “client” was the three-man Bingham Inquiry Unit, and even communications between the Bank of England’s lawyers and the Governor of the Bank of England would not have been privileged: “the BIU … is the client rather than any single officer however eminent he or she may be…”
  • Those who instruct lawyers on the one hand and receive legal advice on the other may be the same individuals or they may be different. There is no set limit to the number of members of the inner “client”, save to say that the bigger it is, the more difficult it may be to justify.
  • So long as the communication is for the purposes of giving or receiving legal advice, it will be privileged. This is widely construed to include communications where there is a “relevant legal context” – or informally whenever the lawyer is advising with his or her legal spectacles. It can include a lawyer’s advice on how to present a case to an inquiry, but may be lacking where the lawyer is acting as general business adviser and advising on, for example, investment or finance policy or other business matters.

US law

  • The US equivalent to legal advice privilege is attorney-client privilege.  Similar to English law, the definition of a client when dealing with private individuals is straightforward.  In the corporate setting, the analysis is a little more complicated.  Attorney-client privilege protects communications between in-house or external counsel and their clients that are (i) intended to be confidential and (ii) made for the purpose of seeking or obtaining legal assistance or advice.
  • Generally, employees who engage and direct the lawyer are part of the client group.  Other employees can also be part of the client group if they meet the test set forth by the United States Supreme Court in Upjohn Co. v. United States:
    • First, the communication must be authorised by the corporate superiors.
    • Second, the employee must be aware that the communication is related to legal advice.
    • Third, the information covered by the communication cannot be available from the corporate superiors.
    • Fourth, the communication must be related to the employee’s duties at the company.
  • If any one of these factors is not met then the communication will likely not be privileged under the attorney-client privilege under US law.  It may, however, be protected by the work product doctrine if made in anticipation of litigation or for trial.