There are two types of legal privilege but, for each, the technical components must all be met. Described as simply as possible:
Legal advice privilege protects:
- confidential communications
- between a lawyer and client
- for the purpose of giving or receiving legal advice.
Litigation privilege protects:
- confidential communications
- between the client, lawyer and third parties (which may include other clients)
- where litigation is in progress or is in reasonable contemplation
- where the communication is prepared for the “dominant purpose” of that litigation (or avoiding that litigation).
An example may best explain how legal privilege can work.
An example of how it works
A doctor, Jo, is concerned that her NHS Trust employer is breaching its legal duties towards its patients or staff, failing to assess risks of harms being caused while rigidly following some Covid-Secure guidance. She is concerned that if she reports this to or outside the Trust, she may be subject to disciplinary sanction by a relevant regulator such as the General Medical Council. Thinking she is alone or may easily be picked off, she has until now kept her head down and said nothing.
However, as a client what she tells Laworfiction in relation to any whistleblowing disclosure can be protected (client privilege). She also sees the benefit of joining forces with others, contemplating litigation against the Trust or those who are responsible for its conduct including, perhaps, Government ministers. She sees that if there are a number of others in the same Trust, or in similar positions of responsibility with the same concerns, then together they may have more resources, more support and be more difficult to pick off.
To that end, she provides Laworfiction with details of her concerns and evidence in support. She authorises us to consider her concerns alongside others who have subscribed to Legal Courage and have become clients of Laworfiction. We can consider overlapping or shared disclosures helping us improve (a) the strength of their individual and joint legal cases and (b) their prospects in litigation following making of any whistleblowing disclosure, whether that be pursuing or defending litigation.
That sharing, in the individual and joint interests of a group of clients, is subject to agreement that information is received by each client on strict condition that confidentiality is maintained, that legal privilege is maintained, and that it is not disclosed to anyone else without express permission.
In the event, as she and others spread word, dozens of medical professionals in the same Trust subscribe to Legal Courage and share their concerns with us. On Dr Jo’s reports alone, the concerns were obvious. However, with her colleagues stepping forward, we are able more clearly to identify:
- breach of legal obligations by the Trust
- the evidence in support
- to whom any disclosure should be made
- if disclosure can be made anonymously, by an individual or by a group with or without any identifiable leader
- how to help them all stand up together and reduce likelihood of legal action being necessary