by employment law specialist Amanda Okill of Furley Page

Legal advice given to a client by a qualified lawyer is protected from disclosure by “legal advice privilege.”

This means the client can access their lawyer’s professional skill without worrying about the content of the advice being disclosed in subsequent court proceedings.

That protection, however, does not extend to advice given by advisory bodies and consultants outside the traditional legal profession, even if it is highly sensitive.

A recent decision by the UK’s Supreme Court in the case of R (on the application of Prudential plc) v Special Commissioner of Income Tax is a good example.

Prudential had sought legal advice from its accountants PricewaterhouseCoopers in connection with tax avoidance but, because the advice was not privileged, the company was eventually required to disclose it to Her Majesty’s Revenue and Customs.

At the moment there are no plans for privilege to be expanded to cover a wider field of professional advisers.

So before seeking advice from someone who isn’t a lawyer, you should be fully aware of the issues that could arise.

We are often asked by clients to advise on redundancy selection, for example.

If our clients sought the same advice from someone who wasn’t legally qualified, however, and a redundancy dismissal resulted in litigation, all records of the advice relating to the process would be open to disclosure.

That means the employee and their adviser would have access to potentially very sensitive information which could prejudice the outcome of the client’s case.

The key points to remember are:

• Know your adviser – in England and Wales, legal advice privilege does not extend beyond the traditional professions of solicitor, barrister and chartered legal executive. This includes in-house lawyers and foreign lawyers. It does not extend to someone who has studied or has a degree in law without having gained the professional qualification.
• Legal advice privilege does not extend to other professionals such as accountants, tax advisers, HR consultants, mentoring and support services, business consultants and health and safety consultants. Make sure the adviser you speak to is legally qualified.
• Be selective – when planning projects which could have significant legal consequences and where absolute confidentiality is required, take advice from a legally qualified professional i.e. a solicitor or barrister registered with The Law Society.
• If advice is sought from multiple sources, co-ordinate it through a legally qualified solicitor, who will be used to handling large-scale projects. Where legal advice is required following an audit or investigation on a sensitive matter, put it to a qualified lawyer.