Legal professional privilege is a fundamental right of both lawyers and the public. Edward Nally explains how the law society went to bat to protect it.

I have been reflecting on the responsibility of the Law Society to influence the law, particularly when aspects of established legal practice are challenged. One recent example provides a classic illustration of the value of that work.


Legal professional privilege lies at the heart of legal practice. It is a powerful and important client privilege and is embedded in the minds of fledgling solicitors in the early stages of their careers.


Nally: persistence paid off
So, when after extensive judicial scrutiny by the Court of Appeal the meaning and scope of legal professional privilege became uncertain, it was no surprise that the Law Society decided to act.


In July of this year the Court of Appeal questioned the right of solicitors to claim privilege in communications with clients in its decision in Three Rivers v Governor & Co of Bank of England (No 6).


The case came out of the challenge brought by investors in BCCI, the bank that collapsed in 1991, against the conduct of the Bank of England as a regulator. Investors sought communications that had passed between the Bank of England and its lawyers in relation to the subsequent inquiry into the collapse of BCCI.


In the eyes of the Law Society, and undoubtedly the profession, the Court of Appeal decision in the Three Rivers case posed a real threat to the fundamental right to legal professional privilege.


We believed that this was not something that could be taken lightly. Legal professional privilege underpins the important relationship between solicitor and client – it protects the confidentiality of their communication, enabling the client to be candid and the solicitor to give accurate advice based on a complete knowledge of the facts.


The ramifications of any kind of erosion of the right to privilege could, in the Law Society’s view, be extremely damaging to the profession and, more importantly, to the public we serve.


As a result, we decided to intervene in the Three Rivers case, by written submission, along with the Attorney-General on behalf of the government, and the Bar Council.


In August of this year the House of Lords overturned the Court of Appeal decision and on 11 November 2004 it released its long-awaited reasoning for its decision.


The Law Society had three main concerns about the Court of Appeal case, which I am pleased to say have now been addressed by the House of Lords.


The first related to the scope of legal advice privilege. The long established and largely unequivocal test as to the meaning of legal advice privilege, as set out in the 1988 case of Balabel v Air India, has now been reinstated.


The definition of legal advice as it stands now is that it is advice given not only in relation to the law, but also includes advice as to what ‘should prudently and sensibly be done in the relevant legal context’.


The second was that the Court of Appeal had questioned the long-established public policy justification for legal professional privilege.


The Law Lords have now reaffirmed this and confirmed that citizens must be able to consult their lawyers in confidence, secure in the knowledge that this communication will be free from scrutiny by others.


The third was that the Court of Appeal appeared not to acknowledge that legal professional privilege is in fact a fundamental human right.


The Law Lords have now recognised the important status of legal professional privilege, reaffirming Lord Hoffman’s statement in the Morgan Grenfell case stating that legal professional privilege was a ‘fundamental human right long established in the common law’, a right that the ordinary citizen has had for centuries.


The Law Society responded rapidly to the threat posed by the Three Rivers case and our persistence has paid off. Our intervention has afforded us protection of the right to legal professional privilege and reaffirmed its fundamental role in the relationship between solicitor and client.


This type of work not only demonstrates the Law Society’s commitment to its duties as a professional body, it also shows us working at our best alongside specialists within the profession.


We must not shy away from challenging erosion of the rule of law or from standing up for the rights of the profession or of the public. Although much of this kind of work is undertaken away from the limelight and out of view, it is nonetheless work of which we can all be proud.


This is, of course, not the first time that the Law Society has intervened in a case such as this and it certainly won’t be the last. Even as I write this article the Law Society along with Bar Council and National Criminal Intelligence Service (NCIS) will be intervening in the case of Bowman v Fels, heard in the Court of Appeal on 29 and 30 November 2004.


It is our hope that this case will clarify some of more controversial aspects of the Proceeds of Crime Act 2002 (POCA), which are currently having a hugely detrimental affect on litigation and the administration of justice.


We will keep solicitors informed of developments, and in the meantime we will continue to fight the good fight. Practitioners are entitled to expect no less from their professional body.


Edward Nally is the Law Society President