The Lawyer’s Duty to Assert Legal Advice Privilege

This article outlines the general contours of a lawyer’s duty to assert legal advice privilege, with reference to English common law cases. Four key issues are examined, including the rationale for and costs of asserting legal advice privilege.

Introduction

In the 2015 film, Bridge of Spies, Rudolf Abel, a Russian spy who lived in America during the early years of the Cold War in the 1950s, was charged with espionage. James B Donovan, an American insurance lawyer appointed to represent Abel, met with his client in prison. One rainy night, an agent of the Central Intelligence Agency (CIA) accosted Donovan and pressed him to reveal what Abel had told him. Donovan asserted attorney-client privilege, but the CIA agent downplayed it, saying that privilege was “legal gamesmanship” and that he understood that using such a device was how lawyers made a living. The CIA agent added that America’s security was at stake and if Donovan disclosed what Abel had told him, no one would be any the wiser as there was no “rulebook” governing such disclosures. Donovan pointed to the American Constitution as the “rulebook” and refused to breach attorney-client privilege.

This memorable scene from the film captures an inescapable tension in the law of attorney-client privilege, or “legal advice privilege” as it is referred to in Commonwealth jurisdictions. Are lawyers bound to keep their mouths forever shut on communications with their clients, or are there circumstances, beyond established exceptions, where legal advice privilege should and can be overridden?

In a recent case, Lee Victor Addlesee v Dentons Europe LLP¹(2019) EWCA Civ 1600. (Addlesee), the English Court of Appeal, following the seminal House of Lords decision in R v Derby Magistrates’ Court ex p B²(1996) 1 AC 487. (Derby Magistrates), reaffirmed the “absolute” nature of legal advice privilege. Unless waived or overridden by statute, privilege attached to a lawyer-client communication does not cease.³Supra, n 1 at (52). Legal advice privilege must be absolute because the client must be certain at the time when he consults his lawyer that such privileged communications will never be disclosed without his consent.⁴Id, at (29) and (57).

However, the notion that legal advice privilege is absolute has been widely criticised by commentators who prefer or advocate a “balancing” approach to take into account competing interests for the disclosure of privileged material.⁵See e.g. Jonathan Auburn, Legal Professional Privilege: Law and Theory (Oxford-Portland Oregon: Hart Publishing, 2000), pp. 8 and 99-100. One commentator has even referred to “absolute privilege” as a “legal fiction”.⁶Olivia Ljubanovic, “Absolute Privilege: A Legal Fiction” (2019) 45 Ohio Northern University Law Review 153. This article does not seek to resolve the intractable debate, but instead examines four key issues arising from Lewison LJ’s observations in Addlesee on the lawyer’s duty to assert legal advice privilege:

• Why must a lawyer assert legal advice privilege?
• Who bears the costs of asserting legal advice privilege?
• Are there any circumstances where legal advice privilege need not be asserted?
• Does the question of whether a statutory power to ask for disclosure of privileged material had been validly exercised only arise after the lawyer asserts legal advice privilege?

To a large extent, these issues have not received close attention in Singapore academic literature and jurisprudence to date. Given that legal advice privilege is codified in Singapore’s Evidence Act⁷Cap. 97. See e.g. Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd (2007) 2 SLR(R) 367 at (27); Chen Siyuan and Lionel Leo, The Law of Evidence in Singapore (Second Edition, Singapore: Sweet & Maxwell Asia, 2018) at (8.019) and (8.021). (Evidence Act) and, as submitted later in this article, that Common Law privilege is encapsulated in a number of Singapore statutes, it is vital for practising lawyers in the Singapore legal profession to assess the impact of English Common Law developments on the scope of their duty to assert legal advice privilege on behalf of their clients.

Absolute Privilege – Derby Magistrates and Addlesee

To fully appreciate the lawyer’s duty to assert legal advice privilege, it is necessary to examine first the notion of absolute privilege in English Common Law, from which it is derived, or at least inextricably linked. Absolute privilege is in fact of relatively recent vintage – before the 1995 decision of Derby Magistrates, legal professional privilege was a “mere rule of evidence”.⁸Colin Passmore, Privilege (Fourth Edition, United Kingdom: Sweet & Maxwell, 2020) at (1-021). Its elevation to a “substantive legal right in English Law”⁹Ibid. requires some explanation.

Derby Magistrates was a criminal case where two persons were suspected to have been involved in the murder of a 16-year-old girl. The first suspect, who had gone for a walk with the deceased, had admitted to being solely responsible for the murder, after initially denying involvement. Subsequently, he retracted his statement and alleged that the second suspect, his stepfather, had killed the girl. The first suspect was eventually acquitted after a trial.

Fourteen years after the murder, the second suspect was arrested and charged with murder. During committal proceedings, the first suspect gave evidence for the Crown and was asked during cross-examination about instructions he had given to his solicitors between his admission and subsequent retraction. As he refused to waive his privilege, an application was made for the stipendiary magistrate under section 97 of the Magistrates’ Court Act 1980 to grant a witness summons directed to his solicitors to compel the production of privileged documentation, namely, all attendance notes and proofs of evidence which disclosed his factual instructions in defence of the charge of murder before his retraction. The stipendiary magistrate granted the summons accordingly, and another summons was issued by a justice of the peace on the same terms to the first suspect personally. The first suspect challenged the issue of the summonses by way of judicial review.

In a unanimous decision, the House of Lords allowed the appeals and remitted the case to the High Court, with a direction that the decisions of the stipendiary magistrate and the justice of the peace be quashed. Lord Taylor, who delivered the leading judgment, determined that the appeals succeeded on technical grounds, ie, the conditions for issue of a witness summons under section 97 of the Magistrates’ Court Act 1980 had not been satisfied, but went on to consider whether the witness summons was in any event protected by legal professional privilege and was therefore immune from production.

Following an analysis of English case law on legal professional privilege dating back to 1577, Lord Taylor concluded that the governing principle was that “a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth”.¹⁰Supra, n 2 at 507D. Legal professional privilege was “much more than an ordinary rule of evidence”, as “[t]he client must be sure that what he tells his lawyer in confidence will never be revealed without his consent”.¹¹Ibid. Indeed, it “is a fundamental condition on which the administration of justice as a whole rests”.¹²Ibid.

Although Lord Taylor recognised the “unusual facts” of the case in view of the interests of justice and of the second suspect, he observed that the privilege was not upheld merely for the sake of the first suspect, but “in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors”.¹³Id, at 508H. No balancing exercise was required in the exercise of legal professional privilege as it had already been performed in the 16^th century and “since then [had] applied across the board in every case, irrespective of the client’s individual merits”.¹⁴Id, at 508E. Hence, the “absolute nature of legal professional privilege, once established”¹⁵Id, at 509A. brooked no exception.

As noted in a leading English textbook on privilege, Derby Magistrates “reaffirmed the policy underlying legal professional privilege, as well as removing any scope for doubting the absolute nature of privilege: client-lawyer communications are sacrosanct and will not yield to any other public interest”.¹⁶Supra, n 8 at (1-026). However, Derby Magistrates has also been criticised, principally that if legal professional privilege was treated as “an absolute constitutional principle”, it would clash with “other fundamental principles, such as the right of the innocent to be protected from criminal conviction”.¹⁷Bankim Thanki QC (ed.), The Law of Privilege (Third Edition, United Kingdom: Oxford University Press, 2018), at (1.31). Another commentator observed that the decision in Derby Magistrates was grossly unjust as it denied “potentially exculpatory evidence to an accused faced with a murder charge”.¹⁸Supra, n 5 at p. 46. Even local commentary written in 1998 observed that:

“Nevertheless, the pressing need of the innocent accused has an intuitive appeal and it would be hard law if the House of Lords was understood as shutting the door completely to any vindication of such innocence”.¹⁹Tan Yock Lin, The Law of Advocates and Solicitors in Singapore and West Malaysia (Second Edition, Singapore: Butterworths Asia, 1998), p. 577.

Twenty-four years after Derby Magistrates was decided in 1995, Addlesee presented an opportunity for the English Courts to re-evaluate absolute privilege. The facts of Addlesee were, however, not concerned with the innocence of an accused person, but with the significantly less emotive issue of whether legal advice privilege subsisted despite the absence of a person entitled to assert it. The Court in Addlesee held that privilege was not lost merely because there was no person entitled to assert it.

In that case, disgruntled investors applied for disclosure of presumably privileged documents passing between a Cypriot company and its lawyers, Salans LLP, which was later renamed Dentons Europe LLP (Dentons). The company had marketed an investment scheme, which the investors claimed was fraudulent. Following the company’s dissolution in January 2016, the investors sued Dentons for damages for deceit or negligence. The documents in question, which were now in Dentons’ possession, were likely to be highly relevant evidence and were assumed to have attracted legal advice privilege, but did not fall within the “iniquity” exception.

The novel issue raised was whether legal advice privilege attaching to communications between a company and its lawyer continued to operate, notwithstanding that the company had been dissolved and the Crown had disclaimed all interest in its former property. At the first instance, Master Clark held that the privilege subsisted, notwithstanding a binding authority which held that legal advice privilege did not survive the dissolution of a Northern Irish company.

Dismissing the investors’ appeal, Lewison LJ highlighted that the rationale for legal advice privilege was key to resolving the appeal. Analysing Derby Magistrates and other authorities, he concluded that the rationale for legal advice privilege was to provide the client with the “security of knowledge” at the time that the communication was made that his lawyer would not disclose such communication.²⁰Supra, n 1 at (14). This meant that “privilege comes into existence at the time when the person in question consults his lawyer”, thus giving certainty to the client that “without his consent, there are no circumstances under which the privileged communications will be disclosed without his consent”.²¹Id, at (29).

Echoing Lord Taylor’s aphorism in Derby Magistrates that “the lawyer’s mouth ‘is shut forever’”,²²Ibid; supra, n 2 at 505A. Lewison LJ observed that what must be established is “the consent to disclosure”.²³Ibid. On the facts, the question was not whether privilege should be extended to a company that had been dissolved, “but of extending the circumstances in which privilege, once attached to a communication, ceases to apply”.²⁴Id, at (51). The law was clear that once privilege had attached to a communication at the time when it was made, it would only cease if waived by the client or overridden by statute.²⁵Id, at (52). The privilege did not cease merely because the client whose privilege it was no longer had a “recognisable interest” in it.²⁶Id, at (57). Moreover, creating an exception in the case of a dissolved corporation might open the door to other exceptions, which would “undermine the policy of certainty that underpins legal advice privilege”.²⁷Id, at (58).

Why Must a Lawyer Assert Legal Advice Privilege?

Fundamentally, privilege is “a right that belongs to the client, not to the lawyer”.²⁸Supra, n 8 at (1-248). As privilege is absolute and belongs to the client, the lawyer is “under a duty to protect his client’s privilege, for example, by asserting it on his behalf if he himself is asked to produce his client’s privileged documents or to answer interrogatories which would involve the disclosure of privileged information”.²⁹Id, at (1-249).

In Addlesee, Lewison LJ cited two English cases supporting the lawyer’s duty to assert privilege. Firstly, in Nationwise Building Society v Various Solicitors,³⁰(1999) PNLR 52. the Court held that flowing from the notion of absolute privilege, “it is the lawyer’s duty to claim the privilege on behalf of the client, or former client, whose privilege it is, at any rate where it is at least arguable that the privilege exists”.³¹Id, at 69B.

Secondly, in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax³²(2003) 1 AC 563. (Morgan Grenfell), a case involving non-judicial proceedings, a tax inspector sought to invoke Section 20(1) of the Taxes Management Act 1970 (Act) to require the applicant bank to disclose documents relating to the advice which it had obtained from leading counsel and solicitors about the feasibility of a tax avoidance scheme. A central issue turned on section 20B(8) of the Act, which provided that a notice issued under, inter alia, section 20(1) “does not oblige a barrister, advocate, or a solicitor to deliver or make available, without his client’s consent, any document with respect to which a claim to professional privilege could be maintained”. The Inland Revenue argued that the purpose of section 20B(8) was “to prevent the lawyer from being placed in a situation in which he had a statutory duty which conflicted with his duty to his client”, by providing that such conflict was eliminated as “the duty to the client prevailed”.³³Id, at (23).

Lord Hoffman disagreed with the Inland Revenue’s interpretation that a client served with a notice under section 20(1) would be obliged to give his consent, but a lawyer served with the same notice could rely on section 20B(8). He pointed out that legal professional privilege was “a single privilege, for the benefit of the client, whether the documents are in his hands or that of his lawyer”.³⁴Id, at (25). Where a lawyer was served with a notice under section 20(1), the lawyer “has no privilege of his own but may, indeed must, assert that of his client”.³⁵Ibid.

Local commentary has also emphasised a lawyer’s duty to assert privilege on behalf of his client. For example, Professor Tan Yock Lin noted that “[w]hatever the circumstances in which disclosure of privileged communications is sought of a solicitor, he has a duty, even though he is unable to obtain instructions from his client, to assert the privilege on behalf of his client or to resist the production of any documents subject to the privilege”.³⁶Supra, n 19 at pp. 525-26. [emphasis added]

Also, it has been observed that under section 128 of the Evidence Act (which codifies legal advice privilege), “[a] lawyer must claim privilege on his client’s behalf” and a failure to do so is tantamount to “a breach of the legal profession rules and he may be open to disciplinary action”.³⁷Supra, n 7, The Law of Evidence in Singapore, at pp. 608-09. Australian jurisprudence also indicates that a breach of the duty to assert privilege “confers on a client a right of action against the lawyer in tort or in contract”.³⁸G E Dal Pont, Lawyers’ Professional Responsibility (6^th edition, Sydney: Thomson Reuters (Professional) Australia Limited, 2017), at (11.175).

Together, these authorities suggest that there could be significant consequences if a lawyer fails to properly assert legal advice privilege. Hence, the duty to assert privilege deserves serious attention.

Who Bears the Cost of Asserting Legal Advice Privilege?

A practical issue that has received little attention until Addlesee was that of who should bear the cost of asserting legal advice privilege. In a leading UK textbook on privilege, the author suggests that “[g]iven the absolute nature of the privilege, it would also appear that the lawyer must discharge this duty at his own expense, if necessary”.³⁹Supra, n 8 at (1-251). This is because the lawyer must uphold the administration of justice and ensure that privileged information is not put at risk of disclosure to an adverse party.⁴⁰Ibid.

This proposition may need to be re-examined in light of Addlesee, where an issue was raised as to how far should a lawyer go to assert legal advice privilege and whether the lawyer should be fully compensated in discharging that duty. In Addlesee, the investors had appealed against Master Clark’s order that they pay 80 per cent of Dentons’ costs of the application. The investors argued that Dentons merely needed to assert privilege on behalf of their non-existent client and need not have appeared on the application.

Rejecting the costs appeal, Lewison LJ observed that Dentons had a duty to assert privilege and if in so doing, “they incur costs (including costs in resisting an application for disclosure) they are doing no more than fulfilling that duty”.⁴¹Supra, n 1 at (92). Moreover, it would have been “extraordinary” for Dentons, as the only named party to the application for which mandatory orders were sought against them, to be disentitled from appearing before the Court to contest the orders sought.⁴²Id, at (93).

Nevertheless, Lewison LJ cautioned that he was not establishing a general proposition that “solicitors must always participate in contested proceedings for disclosure”, but “merely that they may do so without overstepping the limits of their duty”.⁴³Ibid. Solicitors ran the risk of being personally liable for costs if they were unsuccessful, if they asserted privilege without an indemnity from their client or former client.⁴⁴Ibid.

In the author’s view, Lewison LJ’s views in Addlesee strike a sensible balance. On the one hand, overzealous assertions of privilege should be discouraged. On the other hand, lawyers should not be undercompensated in costs when reasonably discharging their duty to assert privilege. Nevertheless, there remains some uncertainty on how the duty to assert privilege should be exercised in contested proceedings.

Are There Any Circumstances Where Legal Advice Privilege Need Not Be Asserted?

In reaffirming absolute privilege in Addlesee, Lewison LJ noted that this position was reflected in, for example, section 8 of the Police and Criminal Evidence Act 1984 (PACE), which empowered a magistrate to issue a search warrant where a number of conditions are fulfilled, including where the material “does not consist of or include items subject to legal privilege”. Items subject to legal privilege are defined in Section 10 of PACE as:

“(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and

(c) items enclosed with or referred to in such communications and made—

(i) in connection with the giving of legal advice;

or

(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,

when they are in the possession of a person who is entitled to possession of them”⁴⁵Supra, n 1 at (30). [emphasis added]

Noting that section 10 of PACE was said in R v Central Criminal Court, ex p Francis & Francis⁴⁶(1989) AC 346. to “encapsulate the Common Law”, Lewison LJ added that “[t]here is no requirement here for legal advice privilege to be positively asserted”.⁴⁷Id, at (31). However, the basis for the latter statement is unclear. If it is only intended to clarify that it is unnecessary to assert legal advice privilege because the statutory provision clearly protects it and the relevant authority does not ask for privileged materials, this appears to be stating the obvious.

The difficulty with Lewison LJ’s statement is that it cannot account for a scenario where the relevant authority issues a notice or summons for privileged material that it is not entitled to. A lawyer must then positively assert legal advice privilege as he may be liable to his client if he fails to do so.

This point has practical implications for practising lawyers in Singapore, given that several statutory provisions are worded similarly to section 10 of PACE and thus encapsulate legal advice privilege. A typical provision is found in Section 2A(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act,⁴⁸Cap. 65A. which provides, inter alia, that an item is subject to legal privilege if “it is a communication made between a lawyer and a client, …, in connection with the lawyer giving legal advice to the client…” or if it is “an item, or a document (including its contents), that is enclosed with or referred to in [such a] communication”.⁴⁹See also other similar provisions (non-exhaustive): section 386AE(1) of the Companies Act (Cap. 50); section 32E(1) of the Limited Liability Partnerships Act (Cap. 163A); section 3(1) of the Organised Crime Act 2015 (No. 26 of 2015); and section 73(3) of the Info-communications Media Development Authority Act 2016 (No. 22 of 2016).

Statutory Power to Ask for Material Covered by Legal Advice Privilege

A final interesting question raised by Addlesee is whether the lawyer’s duty to assert legal advice privilege is a necessary pre-requisite to determining whether a statutory power to ask for disclosure of privileged material had been validly exercised. In Addlesee, Lewison LJ opined that there was no such pre-requisite, in light of the orders made in Derby Magistrates and Morgan Grenfell. In Derby Magistrates, the court had ordered that the witness summons be quashed, which implied that neither the stipendiary magistrate nor the justice of the peace was empowered to issue the summons in the first place. He observed that “[i]t was not a question of issuing the summons and then waiting to see whether the recipient asserted legal professional privilege”.⁵⁰Supra, n 1 at (43).

Also, in Morgan Grenfell, the Court had held that a notice issued by a tax inspector under section 20(1) of the Act was ultra vires. Noting that the applicant’s case was not that it had a defence to the request to produce documents, but rather that the issue of the notice was ultra vires, Lewison LJ inferred that “the inspector had no right to ask for the privileged material in the first place”.⁵¹Id, at (44). Moreover, he commented that “it would… be very odd if the scope of a statutory power depended on the response of a person against whom it was proposed to be deployed.”⁵²Ibid.

Lewison LJ’s views generally accord with how statutory provisions that expressly exempt the disclosure of privileged information are drafted in Singapore. For example, a statute may prohibit the relevant authority from asking a person to provide any information or produce any document that is an item subject to legal privilege.⁵³See e.g. section 30(b) of the Organised Crime Act 2015 (No. 26 of 2015). Alternatively, the statute may provide that a person is not obliged to disclose privileged information to the relevant authority.⁵⁴See e.g. section 30ZB(5) of the Moneylenders Act (Cap. 188). None of these provisions contemplates that a lawyer’s assertion of privilege would determine the scope of the statutory power.

Therefore, if, notwithstanding any express statutory exemption for privilege, the notice or summons issued by the relevant authority purports to encompass materials covered by legal advice privilege, it is suggested that the lawyer should not only assert legal advice privilege, but also assess at the outset whether such a request is ultra vires. In this regard, the lawyer should undertake a careful appraisal and interpretation of the relevant statutory provisions, including the definition, if any, of items that are subject to legal advice privilege. It may also be prudent for the lawyer to reserve the client’s right to challenge the validity of the statutory power invoked.

More complexities may arise where the statutory provision requiring disclosure of confidential information is silent about its effect on legal advice privilege.⁵⁵See Rosemary Pattenden & Duncan Sheehan, The Law of Professional-Client Confidentiality: Regulating the Disclosure of Confidential Information (Second Edition, United Kingdom: Oxford University Press, 2016), at (10.52). If such a provision is construed to have abrogated legal advice privilege by necessary implication (a conclusion that should not be reached lightly),⁵⁶Id, at (10.53). the relevant authority would probably be permitted to ask for the privileged material in the first place.

Conclusion

The goal of this article has been to outline the general contours of a lawyer’s duty to assert legal advice privilege. The consequences of failing to assert legal advice privilege can be dire, although unmeritorious or overzealous assertions should also be discouraged. The duty to assert legal advice privilege flows from the notion of absolute privilege in English Common Law, which is founded on the “inviolability of lawyer-client communications”⁵⁷Supra, n 17 at (3.161). in order to promote “absolute candour between a client and his lawyer”.⁵⁸Id, at (1.17). To ensure that their clients’ privileged information are protected to the fullest extent permitted by the law, it is critical for lawyers, when issued with a notice or summons for disclosure, to carefully analyse the relevant statutory provisions and make an informed assessment as to whether and how far they can assert legal advice privilege.

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