Legal Professional Privilege Lawyers Glasgow, Scotland

Legal Professional Privilege (‘LPP’) is a fundamental legal right which protects confidential communication between a client and their solicitor, whether orally or in writing.

Unlike other commonly known ‘confidential information’ such as medical or financial records, privileged legal communications cannot be compelled to be disclosed by a court. This ensures that a client can seek and receive impartial legal advice with their chosen advisor.

Why is LPP important in criminal cases?

LPP frequently becomes a live issue in complex criminal investigations, especially those involving financial crime, regulatory offences or corporate activity.

During investigations by police large volumes of materials, including digital materials, are often seized. This material may potentially include confidential legal communications. Such communications can include, but are not limited to, (i) emails between clients and solicitors, (ii) documents prepared for the purpose of obtaining legal advice, and (iii) records of business transactions conducted with ongoing legal input.

Police searches, warrants and their interaction with legally privileged material

Scots law has evolved in recent years, resulting in greater awareness by the police, the Crown Office and Procurator Fiscal Service, and the courts of the need to protect LPP during criminal investigations.

Warrants, for example, should now include safeguards, such as implemented procedures where privileged material is (a) separated from other evidence; (b) is not reviewed by those investigating; or is (c) preserved pending judicial determination on whether privilege applies.

However, practical issues still arise in practice. Common problems that arise are (i) that privileged material is recovered if it is not obviously marked, (ii) that to identify privileged material investigators examine them, and (iii) that it is unclear how large databases containing both privileged and non-privileged materials can be managed without breaching LPP.

How we can help

Situations involving LPP require careful legal management to ensure that privilege is not breached. Early intervention can be critical in preventing irreversible breaches of privilege. Both individuals and businesses affected by criminal investigations involving potentially privileged material should seek urgent specialist advice.

Our Specialist Litigation Team has extensive experience acting for both accused persons and third parties whose legally privileged material is at risk.

We can provide tailored advice on your case, and assist you with:

• The scope and application of LPP;
• Engaging with the police and Crown on privilege issues;
• Negotiating privilege protection protocols;
• Challenging search warrants that fail to make adequate provision for LPP; and
• Petitioning courts to have defective warrants declared invalid.

Contact our Specialist Litigation Team

For advice on issues concerning LPP, contact our Specialist Litigation Team on 0141 429 8166  or by completing our online enquiry form.