EHJ December 2004, pages 389

This month, Julie Barratt explains why local authorities should avoid becoming over familiar with in-house lawyers. Losing legal professional privilege, she argues, could prove fatal to the case

The process of disclosure requires the prosecutor to provide the defence with a copy of all relevant material pertaining to a case. The material is divided into three classes: material upon which reliance will be placed, material that is disclosed but upon which reliance will not be placed, and other relevant material that exists, but which will not be disclosed. Into this third class goes material for which legal professional privilege is claimed.

The confidential nature of the relationship between a lawyer and their client is sacrosanct. A lawyer must be in a position to advise the client, confident that the advice will travel no further. The advice from the lawyer may affect the judgement of the client, perhaps as to whether to proceed with the case or to withdraw or offer terms of settlement, or to consider the need for further evidence on certain points in issue. Such information would be invaluable to the defence, and would colour the way in which the defence case was to be run. If advice from a lawyer to their client said to the effect that it would be possible for the defence to drive a coach and horses through a particular part of the prosecution case and this were to fall into the hands of the defence, it is unlikely that the defence lawyer would advise his client to offer a plea of guilty. Rather he would advise fighting the case and would arrange for the appearance of the said coach and horses at the appropriate time.

In civil cases relating to quantum of costs or damages, it is vital that advice as to likely awards remains confidential. This is to ensure that those making payments into court (ie lodging a payment equal to or in excess of the award with the court prior to the award being made - an insurance tactic to try to avoid paying the costs of the other side, which succeeds if the award is less than or equal to the amount paid in) otherwise a successful litigant may be faced with paying his own costs.

Where local authorities and those employing in-house legal staff are concerned, there has always been an issue about whether legal professional privilege attaches to memoranda etc. containing legal advice. Where a council seeks advice from an external source, such as a barrister specialising in a particular area of law, the position is clear and the advice is exempt from disclosure by virtue of the legal professional privilege that attaches to it. The question to be addressed is whether a council can claim legal professional privilege for advice from its in-house legal staff to the instructing department? On the one hand, it is certainly legal advice, and it would be invaluable to the defence to know its contents. On the other hand, the lawyer and the instructing officer are part of the same body corporate and the traditional lawyer-client relationship is clouded. Unlike a high street solicitor and his client, in-house legal staff are not so clearly distinct from the client department. In-house lawyers are often a valuable part of the council "team", sitting in on case conferences and providing legal advice right from the start of a case to its conclusion. In such cases, the question is whether the lawyer is an investigator providing legal input, but not acting as a lawyer whose advice is subject to legal professional privilege.

The answer is that the lawyer is a lawyer, whatever role he or she takes in an investigation. The difficulty arises in attempting to separate out material to which legal professional privilege applies where the lawyer has been an integral part of the team. The information may form part of a series of case notes, the majority of which are disclosable but the legal elements of which are not.

Blanking out the legal advice may not assist, since the nature of the advice given may be obvious from what follows and hence the benefit of privilege is lost. In such cases, it is wise to be sure of the role of the lawyer and the nature of the meeting before hand, and to ensure that you do not stray from either once the meeting begins.

The temptation is to be over familiar with in-house lawyers - to treat them as one of the team, rather than as an independent provider of advice and legal guidance. While I do not advocate cutting the lawyers out, make sure there is sufficient distance between you and the legal team to allow them to operate as lawyers, remaining entitled to the benefits of doing so. Loss of legal professional privilege may be fatal to a case. It vital that you keep your distance from your lawyers.

Julie Barratt is director of CIEH Wales