Legal Privilege and Third Party Disclosure: A Comparative Analysis of UK and the US Rules

• Published in: International commentary on evidence Vol. 16; no. 1
• Main Author: Akhtar, Zia
• Format: Journal Article
• Language: English
• Published: Berlin Walter de Gruyter GmbH 27.08.2019
• Subjects: Attorneys; Confidentiality; Privileged communication; United Kingdom > UK; United States > US
• ISSN: 2194-5691; 1554-4567
• DOI: 10.1515/ice-2018-0001

The rules of evidence in common law courts rely on the weight of evidence that is deduced by the court based on its admissibility and credibility. This is subject to the evidence that has been disclosed by the client to their lawyer either before or after the litigation is commenced in court. The availability of legal professional privilege is a substantive legal right (not a procedural rule) and it enables a person to refuse to disclose certain documents in a wide range of situations. There can be no adverse inference that can be drawn from a valid assertion of legal professional privilege on evidential grounds by the court. Under English law, privilege applies to the advice given by external lawyers and in-house lawyers (acting in their capacity as lawyers) in the case or in contemplation of litigation. Privilege in the US is broader than in the UK and may vary over time and according to locations/context but a privileged communication under UK law may not be privileged in the US. The Attorney-client confidentiality and work-product doctrine are the most common US types of privilege and this will protect investigation material if its primary purpose is to provide information to obtain a legal advice (i. e. if it is not for a business purpose). The research question in this paper is to what extent internal investigations need to be disclosed where the client confidentiality is not applicable and the court orders disclosure. It compares the framework under which privilege can be exercised, and how in the US a different interpretation allows greater margin for client confidentiality when investigations include another party if documents are compiled in contemplation of legal proceedings.