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Legal Professional Privilege: Corporate and Criminal Applications

JUEST Network Research Statement

Professor Michael Stockdale, Northumbria Law School and Associate Professor Rebecca Mitchell Northumbria Law School, Northumbria University

This research statement outlines our combined knowledge and research activity in the field of legal professional privilege. It also sets out how our work is relevant in the context of European Commission competition law investigations.

Knowledge and Research

Our research in the field of legal professional privilege covers a broad spectrum of related issues with both a national and international focus.

We have analysed the challenges faced by corporations seeking to claim legal professional privilege, specifically identification of the “client” for the purposes of legal advice privilege and consideration of challenges to claims of litigation privilege in the face of modern criminal investigative processes (Stockdale M and Mitchell R 2018 and 2006).

In the context of taxation, we have explored a range of topics such as: different ethical regimes for lawyers and tax advisers (Mitchell R 2018); comparative analysis of the operation of the crime/fraud exception to legal professional privilege in the taxation context (Mitchell R and Stockdale M 2017); and an exploration of legal advice privilege for tax advisers across a range of jurisdictions (Mitchell R 2015).

Other related areas we have investigated include the operation of joint privilege in English law, including EC competition law implications for in-house lawyers and the operation of legal professional privilege in relation to alternative business structures (Mitchell R and Stockdale M 2013)

Our work in progress concerns the relationship between legal professional privilege and criminal investigatory powers in an international context.

Application of Knowledge and Research to the Development and Implementation of the Proposed EU-UK Security and Criminal Justice Treaty

The fundamental issue so far as legal professional privilege in the post Brexit era is concerned is whether English and Welsh lawyers will be able to assert privilege in the context of European Commission investigations. This will continue to be important post Brexit because many UK corporations will still operate in Europe. Whilst English law permits privilege to arise where a client instructs a foreign lawyer, it seems that under EU Competition law communications between client and English or Welsh lawyer might not be treated as privileged post Brexit.

Post Brexit UK corporations operating in Europe will continue to be subject to the potential of sanctions imposed by the European Commission.

  • While UK competition law will continue to apply in the UK following Brexit, EU and UK approaches may diverge.
  • UK competition law rules (Chapters I and II Competition Act 1998) are very similar to EU competition rules (Articles 101 and 102 of the Treaty on the Functioning of the European Union) (except that they apply where there is an effect on trade in the UK). The Competition Act 1998 will continue to apply where there is an effect on trade in the UK.
  • The impact of EU competition law on the UK following the UK’s departure will depend upon any future agreements reached between the UK and the EU. If the UK maintains access to the single market, the consequence would be that EU competition law, state aid and public procurement rules would continue to apply with the UK courts being bound by EU legislation and EU court judgments.
  • If the UK does not maintain access to the single market, the UK courts will not be bound by Commission Decisions, Commission Regulations, EU court judgments and EU legislation apart from perhaps on an advisory or persuasive basis. This may create a divergence of approach between the EU and UK Courts and competition authorities, not least in areas such as privilege, the operation of Article 6 and Article 8 of the ECHR and leniency agreements in competition law.
  • EU competition law will remain applicable to UK undertakings whose operations have an effect on trade between EU Member States, but it may be that UK lawyers no longer have the status of European Economic Area (EEA) lawyers.
  • Unlike the position in English law, legal professional privilege does not attach to communications by or with in-house lawyers in the context of European Commission competition law investigations. This will not change post Brexit. More significantly for present purposes, privilege only arises in the context of such investigations where the lawyer is a EEA qualified lawyer external to the business. So it seems, post Brexit, that if the UK is not part of EEA, and UK business was subject, for example, to a Competition Commission investigation (which it could still be if it conducts activities which have an effect in the EU, such as appointing commercial agents or distributors in the EU) then the business could not claim that advice is privileged if it came from a UK lawyer who is not an EEA lawyer. In consequence, UK lawyers who specialise in EU competition law are already cross qualifying in other European Economic Area jurisdictions to maintain their EEA status. For example, a number of solicitors are cross qualifying in the Irish Republic where this is, currently, easy for English and Welsh lawyers to do. This approach obviously helps solves the problem of external lawyers claiming privilege.
  • It may be that UK lawyers suffer a competitive disadvantage acquiring or retaining clients with EU interests if their communications with those clients would not be privileged in circumstances in which a retainer to an EEA lawyer would result in privilege attaching. Clients who continue to instruct a UK lawyer post-Brexit may suffer a disadvantage for the same reason.

References

Stockdale, Michael and Mitchell, Rebecca (2018) “Legal Professional Privilege in Corporate Criminal Investigations: challenges and solutions in the modern age”. The Journal of Criminal Law. ISSN 0022-0183 (In Press) and Mitchell, Rebecca and Stockdale, Michael (2006) “Who is the client? An exploration of legal professional privilege in the corporate context”. Company Lawyer, 27(4) pp. 110-118

Mitchell, Rebecca “Legal advice privilege in the taxation context: disconnected ethical regimes for lawyers and tax advisers in the United States and New Zealand”. New Zealand Journal of Taxation Law and Policy 24 (1) 2018

Mitchell, Rebecca and Stockdale, MichaelThe Crime-Fraud Exception to Legal Professional Privilege in the Taxation Context: Comparative Anglo-American Contextualisation and Optimal Reforms”. British Tax Review 2017, 1, 109 - 132

Mitchell, Rebecca (2015) “Comparative standards of legal advice privilege for tax advisers and optimal reform proposals for English Law”. The International Journal of Evidence & Proof, 19 (4). pp. 246-269. ISSN 1365-7127

Mitchell, Rebecca and Stockdale, Michael (2013) “Legal Professional Privilege and the Alternative Business Structure”. Company Lawyer, 33 (7). pp. 204 - 211. ISSN 0144-1027

Mitchell, Rebecca and Stockdale, Michael (2013) “Joint privilege in English Law”. The Company Lawyer, 34 (12) pp. 365-371. ISSN 0144-1027

 

Professor Michael Stockdale

Michael has worked at Northumbria University since 1983. He has been Head of Law since 2016. He is also Director of the University’s Centre for Evidence and Criminal Justice Studies, which has a wide range of domestic and international members, both academics and practitioners from various areas of the domestic and international criminal justice system. He has published extensively on evidence in a variety of journals and is currently contributing editor (evidence) in Archbold Magistrates Courts Practice, a leading practitioner text. He was Principal Investigator responsible for a major research project relating to fingerprint evidence which was funded by the European Commission and a co-investigator in relation to a European Commission funded project relating to DNA evidence. He is currently engaged with Rebecca Mitchell, an Associate Professor in the Law School, in a research project concerning legal professional privilege.

Associate Professor Rebecca Mitchell

Formerly a solicitor in commercial practice, Rebecca has been a full time member of Northumbria Law School’s academic staff since August 1993. Her teaching interests are in business and commercial law. Main research interests relate to different aspects of legal professional privilege and taxation in an international comparative context, focussing on ethical implications for lawyers and tax advisors and on specific implications of the privilege for corporate clients. She is a longstanding member of Northumbria’s Centre for Evidence and Criminal Justice Studies. Current research interests include privilege and criminal investigatory powers in an international context.