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Focus on Guidelines from Solicitors Regulation Authority (SRA): Segment Two, Distinguishing Client Identification and Legal Professional Confidentiality

Review delves into specifics of SRA's guidelines for in-house legal teams, a response to a sectoral review highlighting the expansion and significance of in-house positions. The unique stressors experienced by in-house solicitors are acknowledged in this guidance.

Focus on Guidance from Solicitors Regulation Authority (SRA): Segment two delves into client...
Focus on Guidance from Solicitors Regulation Authority (SRA): Segment two delves into client identification and legal professional privilege

Navigating Legal Professional Privilege for In-house Solicitors: SRA Offers Guidance

The Solicitors Regulation Authority (SRA) has issued a series of briefings to help in-house solicitors navigate the complexities of Legal Professional Privilege (LPP) in their work. The guidance is particularly important as LPP for in-house solicitors can be more complex than for those in private practice, due to the varying identities of their clients.

Identifying the Client

In-house solicitors must be clear about who their client is, typically the employing organisation itself. However, it's essential to ensure there is no confusion about who receives legal advice. The SRA guidance emphasises the importance of in-house lawyers actively managing how legal advice is formulated and communicated within the employing entity to maintain privilege.

Communications and Confidentiality

Privilege hinges on the communication’s dominant purpose being legal advice or litigation-related. To preserve privilege, advice and related communications should be clearly marked confidential, circulated on a need-to-know basis, and securely stored. Explicitly stating that communications are legal advice aids in establishing privilege if challenged.

Understanding Limitations

Investigations and multi-purpose documents can present challenges to LPP. If documents or reports are prepared for multiple purposes, privilege may not apply to all parts, as recent court rulings have clarified. In-house solicitors should be aware of these limitations and seek external counsel involvement where complexities arise.

Disclosure and Conflicts of Interest

In-house solicitors may be required to disclose internal conversations if they contain material information relevant to a matter. When asked to act for related companies or individuals, potential conflicts of interest should be considered.

The Series and Future Guidance

This series of briefings is focused on the SRA's guidance for in-house teams, issued after a thematic review of the sector. Future parts will cover guidance for employers and for governing boards and senior management. Part one of the series covered reporting concerns about wrongdoing and internal investigations.

In summary, the SRA’s guidance for in-house solicitors on LPP focuses on correctly identifying the client (usually the organisation), ensuring communications are predominantly for legal advice, preserving confidentiality, clearly marking and documenting advice, understanding limits of privilege especially in multi-purpose documents or investigations, considering external counsel involvement where helpful, and establishing procedures for identifying, monitoring, and recording legal and regulatory risks.

In the realm of education-and-self-development, understanding Legal Professional Privilege (LPP) is crucial for in-house solicitors, who can enhance their learning by studying the SRA's guidance on this complex topic. This learning process involves recognizing the importance of identifying the client, maintaining the confidentiality of legal communications, and preserving privilege by marking documents as such, as emphasized in the SRA's briefings.

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