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    COVID–19: Don’t let it take away your privilege

    Summary

    Real Estate Dispute Resolution Solicitor Natalie Dowding discusses the impact of the Covid-19 outbreak on legal advice and privilege.

    COVID-19 continues to change our day to day lives and the way that we work, leaving some understandably panicked and perhaps somewhat off guard. These are changing times and we are still adapting. Most of us are accustomed to working in the safety net provided by a normal office structure with onsite supervision. However, many of us are now working from home and are, as a consequence, engaging in virtual conversations, telephone calls and e-meetings, often with family members around.

    Working from home is not an excuse to become lax about ensuring our information and documentation is safe and privileged. This goes beyond just making sure that you log out of a shared device after use.

    Lawyers in particular should remember that the professional duties relating to confidentiality, privilege and data handling have not changed or relaxed and whilst we may be in the midst of emerging new practices, we are expected thus far, to adhere to the strict standards set by the profession, and the regulators. If anything, these conditions enhance the need for personal vigilance, not reduce them.

    To help clarify what precautions you should be taking, below is a short reminder on privilege and how to avoid falling foul of the rules when seeking legal advice. This advice is relevant for any individual or business seeking legal advice, but is also a reminder for lawyers. 

    Legal advice privilege protects all communications between a professional legal adviser and their clients from being disclosed without the permission of that client, but only where the dominant purpose of that communication was to receive legal advice. Civil Aviation Authority v R (on the application of Jet2.com Ltd) [2020] EWCA Civ 35.

    The relevant test is whether the dominant purpose of the communication is for obtaining or receiving legal advice.

    Having to argue privilege within litigation can be very costly and time consuming, so here are some tips on how to protect both you and your businesses:

    1. Remember that including a member of your in-house legal team in e-mails will not in itself be enough to establish legal advice privilege.
    2. The presence of a legal adviser at a meeting or on a call does not mean by default that the meeting or call is in its entirety subject to legal advice privilege.
    3. Draw a clear line between legal matters from other commercial discussions by separating the issues in calls, e-mails, meetings and any other form of communication.
    4. If you need to print at home, make sure you have permission to do so and that you have procedures in place to safely store or destroy that documentation.
    5. It is critically important to take very special care to check you have the correct email addressee.
    6. If you are dealing with either personal or business matters on behalf of someone suffering from COVID-19, think carefully before engaging in any form of communication and seek advice if you are not sure of what you are doing.

    For lawyers:

    1. Always assume that something a client tells you is confidential and privileged.
    2. Whilst tempting, you must not assume that you can share conversations with a client’s family, sons, daughters, spouses, even where they may become incapacitated by illness. Without permission, you must decline to discuss client business with anyone even in the most tragic of situations.
    3. Do not assume that every member of your staff can necessarily be brought into a discussion that is subject to privilege. There is no blanket allowance for us to share client information and instructions around to staff, secretaries and colleagues without appropriate cause and authorisation.
    4. You may develop in these informal times, a close or even chatty relationship with other lawyers, but always be mindful of not giving away privileged information in conversation. Remember that their duty is to reveal it to their client.
    5. Even though a household is a more informal setting, ensure that family members cannot read what you are doing, or see client (or indeed private office) documentation.
    6. You should never share a laptop or other device that you use for client work.

    Seddons is happy to offer advice to anyone with any legal queries arising from the coronavirus outbreak, including those related to questions of legal advice privilege and litigation privilege. Should you have any questions, or need advice, please get in touch with the Real Estate Dispute Resolution team on 020 7725 8000.

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