Laura Mellstrom, Associate, from our Professional Lines Team, provides an in-depth analysis on the issue of privilege when defending lawyers.
Where a client makes a claim or complaint against their own lawyer, there is an implied waiver of privilege to enable the lawyer to defend themself. No such implied waiver exists where the lawyer faces allegations from a non-client, such as an opposing party, a Judge or a regulatory body. How can lawyers defend themselves in such cases, and why do procedural rules pay such scant regard to the problem?
Legal professional privilege (LPP) is a fundamental common law right which exists to uphold the right of the client to seek private legal advice, and to protect the confidentiality of the retainer. The absolute nature of the right is well illustrated for example by R v Derby Magistrates’ Court, which upheld the privilege of a client who had initially admitted murder, against a request for disclosure of his solicitor’s files on behalf of the person later prosecuted for the crime. The Law Society describes it as “one of the highest rights recognised by English law…a precious right, vigorously protected by our judiciary…” No balancing exercise in respect of relative rights or prejudice is involved. The right belongs to the client, not the lawyer, and can only be waived by the client, or abrogated by Parliament, by express words in a statute or by “necessary implication” arising from a statutory provision.
There is an implied waiver of privilege where the client sues their own lawyer, based on the client’s decision to bring aspects of the retainer into the public domain by inviting the Court to adjudicate on it. The client “cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence.”.
But what is the position outside the realm of professional negligence claims, where lawyers come under attack from others, and are unable to use privileged information to defend themselves?
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 Lillicrap v Nalder & Sons  1WLR 94
 R v Derby Magistrates’ Court, ex p B  AC 487
 Law Society Practice Note: “Legal professional privilege”, 12 August 2021
 Paragon Finance v Freshfields  1 WLR 1183