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16 Int'l Comment. on Evidence 1 (2019)

handle is hein.journals/icmevid16 and id is 1 raw text is: Zia Akhtar1 Legal Privilege and Third Party Disclosure: A Comparative Analysis of UK and the US Rules 1 Gray's Inn, London, UK, E-mail: phiawgraduatecgmail.com Abstract: The rules of evidence in common law courts rely on the weight of evidence that is deduced by the court based on its admissibility and credibility. This is subject to the evidence that has been disclosed by the client to their lawyer either before or after the litigation is commenced in court. The availability of legal professional priv- ilege is a substantive legal right (not a procedural rule) and it enables a person to refuse to disclose certain documents in a wide range of situations. There can be no adverse inference that can be drawn from a valid as- sertion of legal professional privilege on evidential grounds by the court. Under English law, privilege applies to the advice given by external lawyers and in-house lawyers (acting in their capacity as lawyers) in the case or in contemplation of litigation. Privilege in the US is broader than in the UK and may vary over time and according to locations/context but a privileged communication under UK law may not be privileged in the US. The Attorney-client confidentiality and work-product doctrine are the most common US types of privilege and this will protect investigation material if its primary purpose is to provide information to obtain a legal advice (i. e. if it is not for a business purpose). The research question in this paper is to what extent internal investiga- tions need to be disclosed where the client confidentiality is not applicable and the court orders disclosure. It compares the framework under which privilege can be exercised, and how in the US a different interpretation allows greater margin for client confidentiality when investigations include another party if documents are compiled in contemplation of legal proceedings. Keywords: client confidentiality, litigation privilege, ABA model rules, federal rules of civil procedure, internal investigations, transferable jurisdictions DOI: 10.1515/ice-2018-0001 Introduction The privilege attaches to the entitlement of a party to withhold evidence from production to a third party or the court. It is the legal professional privilege which is either legal advice which is confidential communications between lawyers and their clients prior to representation or litigation privilege that is confidential communica- tion which comes into existence for the dominant purpose of being used in connection with actual or pending litigation. If the privileged information comes into the public domain then it is no longer covered by legal privi- lege.1 While the common law governs legal privilege in English law by comparison in the US the Model Rules of Professional Conduct that prescribe client confidentiality have been reinforced by the Federal Rules of Evidence (FRE) .2 It is pertinent to consider with reference to case law the effect of selective waiver which allows disclosure that may impact on evidence in adversarial court proceedings where it concerns internal investigations. These are key considerations that establish a need to understand the implications of the evidential rules in common law courts because the correct understanding of important legal professional privilege issues provides a strategic advantage. This is relevant when for a client and their lawyer to refuse the disclosure of privileged documents and/or communications in the context of an existing, pending or reasonably contemplated litiga- tion. There are procedural rules that apply to both the civil and criminal litigation and privilege applies in circumstances both before and in trial proceedings. It is an established rule that the burden of proof lies with the party trying to prove privilege that the documents are covered by client professional legal privilege.3 The client - lawyer privilege binds all members of the legal profession including solicitors, in-house lawyers, barristers within the UK and duly accredited foreign lawyers (whether foreign in-house counsel who are not required to be a member of their local Bar would still qualify is currently untested. However. care must be taken, when communicating with an in-house lawyer, to place the communication within the correct lawyer/client relationship, because an in house lawyer may need to maintain two such relationships one for commercial reasons when he is acting alone and where there is an external lawyers, in which he (alone or together with others) is the 'client'. The substantive grounds for asserting legal privilege in the UK has been established by Zia Akhtar is the corresponding author. 2019 Walter de GruyterGmbH, Berlin/Boston. 1 DEGCRUYTER Intern ationa I Commentary on Evidence. 2019; 2oi8oooi 90 U. COLO. L. REV. 1

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