Have you ever wondered whether the advice you are being given may be revealed to a court or your opponent? Particularly if this is from a non-qualified or in-house lawyer?
A couple of recent cases show how important it can be to get legal advice from external solicitors, as opposed to non-qualified or in-house advisers. If you do not use external solicitors (like Springhouse!) you should check the following with your advisers straight away.
As a business, the legal advice you have been given may be that you have done or are about to do something outside the rules, along with a suggestion as to how to deal with this. As an employee, the advice may be that your claim is not well founded, but worth a pop.
Obviously, you wouldn’t want a court or your opponent to find out about this advice, and, likewise, it is important that your legal adviser can assist you freely without the fear of this. This is where privilege steps in, shielding this advice, subject to certain conditions. These recent decisions show just how strict these conditions are.
The first case concerns RBS’s Mentor Scheme. It highlights that communications between RBS’s non-qualified advisers (i.e. advisers who are not solicitors, barristers, legal executives or licensed conveyancers) which are not made with a view to litigation may be open to view. Even if litigation is envisaged, commentators have pointed out that the advice is only protected if generated at the request of, on behalf of, or for, a qualified lawyer. This decision may be open to challenge for not considering this.
The second case highlights the rule that in-house lawyers legal advice will not be protected when it comes to EU competition investigations. Otherwise the rule is that only legal advice will be protected, not advice relating, for instance, to the in-house lawyer’s management or compliance duties.