English High Court Confirms the Application of Privilege to Foreign Lawyers
September 21, 2020
By Simon Airey, Joshua Domb & Gesa Bukowski
The Claimant, a Russian company called Tatneft, had withheld documents during an exercise of standard disclosure on the basis that they comprised correspondence between the Claimant and its legal advisers, being communication between Tatneft employees and members of its internal legal department (the "Tatneft Lawyers"). Whilst it was accepted that English law applied, the question was whether communication by foreign in-house lawyers were properly covered by LAP. The Defendant alleged that the Claimant could not assert privilege over those communication because the in-house lawyers were not members of the Russian Bar and were therefore not covered by the concept of "advocacy secrecy" that existed within the Russian legal system. The Claimants accepted that, as a matter of Russian law, the Tatneft Lawyers were not "Advocates" under Russian Law, but argued that, as a matter of English law, LAP applied.
Brief Overview of the Court's Consideration of the Authorities
Reviewing the authorities, the Court noted that the starting point for considering whether or not LAP applied was to look at the rationale for LAP; in essence, that it is considered to be in the public interest that clients can obtain legal advice in confidence.
The argument that the requirement for regulation should extend to foreign lawyers was rejected by the Court on the basis that foreign lawyers comprise a separate category. In addition, due to principles of comity,
The Court reaffirmed the principles that: (i) LAP can apply to communications with professional legal advisers, including in-house lawyers
Accordingly, LAP extends to communications with foreign lawyers whether they are in-house lawyers or not. The Courts of England & Wales will not concern themselves with how foreign lawyers are regulated. The Court noted that the only requirement for LAP to attach to foreign lawyers was as Lord Neuberger had laid down in Prudential—that the lawyer should be "acting in the capacity or function of a lawyer" in "connection with the provision of legal advice".
This decision will give comfort to companies with contracts and arrangements that are subject to English law that legal advice given by their non-English qualified in-house counsel will attract LAP, even where those advisers are not members of the bar or otherwise subject to professional regulation in the country of their qualification. Instead, the key requirement is merely that the foreign lawyer should be "acting in the capacity or function of a lawyer".