President of the Supreme Court, Lord Neuberger, gave a speech last week on the role of legal privilege in internal investigations.
The speech was more of a reminder regarding the current decisions and difficulties of this area of law, rather than an insight into what the future may hold if these issues are brought again before the courts.
However, there were several interesting points to come out of the speech, notably he:
- highlighted the continued narrow interpretation in the UK as to who constitutes the "client" for the purposes of legal advice privilege - it generally includes the board and executive officers, and probably extends to any internal committee, set up explicitly to oversee the investigation, seeking and receiving advice from lawyers
- emphasised the importance of identifying the "client" at the outset and the pitfalls of sharing the advice too widely within an organisation.
- made some particular observations regarding the Serious Fraud Office's stance on privilege, and the recent decision by Barclays to waive privilege. He noted this has been reported in the press but the rationale remains unclear until information about the decision is made public (if it ever is), and;
- noted the difficulties associated with obligations to self-report and the need to protect legal professional privilege. Although he doesn't mention it, the Senior Managers and Certification Regime will probably add to that difficulty for any in-house counsel/compliance personnel in a designated, regulated role overseeing investigations.
A full copy of the speech can be located on the Supreme Court website.