BEWARE OF LOSING Legal Professional Privilege – this is where advice between a lawyer and his or her client is “privileged” and is therefore not subject to the rules of disclosure in subsequent court or tribunal proceedings.
A number of clients engage our services to advise on how to best conduct an internal investigation pending potential disciplinary proceedings. The advice we give is not, itself, disclosable.
However, any initial draft investigation report which is subsequently amended as a consequence of the advice given (or any other document or letter amended following receipt of legal advice) unlikely to be protected by the doctrine of legal professional privilege and both the draft and final reports may discoverable – i.e. the claimant in any proceedings may be entitled to see both. Bearing this in mind, employers should ensure the following if they are seeking external legal advice in relation to any internal disciplinary, dismissal or grievance process.
1. Limit the number of people the documents for which advice is being sought are shared with.
2. Head all drafts “Privileged and Confidential”. This won’t guarantee protection but will, at least, show that this was the intention.
3. Avoid any reference within the documents to advice sought.
4. Ensure that any legal advice is sought at the earliest stage and before any draft letters or documents are prepared.