In the course of doing business, you may hear phrases like “this is legally privileged” or be advised not to share certain documents because of legal privilege. But what does that actually mean? In simple terms, legal privilege (also known as legal professional privilege) is a fundamental principle of English law that allows a client to keep certain confidential communications with their lawyers (and sometimes also third parties) out of court. If a document or conversation is protected by privilege, you generally do not have to disclose it to opponents or regulators even if they request it in legal proceedings. This protection is meant to encourage open and honest communication between you and your lawyers, so you can seek legal advice or prepare for litigation without fear that sensitive information will later be used against you.
However, not everything that involves a lawyer will be privileged – there are specific rules about what qualifies. Privilege can also be lost if you are not careful. This guide explains what legal privilege is, the types of legal privilege and how to preserve it.
What is a legal privilege?
Legal privilege is the right belonging to the client to withhold certain confidential communications and documents from being disclosed to third parties or a court. In practice, this means if a communication is privileged, you can refuse to share it in a lawsuit or investigation. The purpose is to let clients and lawyers speak frankly. For example, you should be able to ask your lawyer “Did we do something wrong here?” or disclose sensitive facts to get advice, without those statements becoming evidence against you later.
Under English law, there are two main types of legal privilege:
- Legal advice privilege
- Litigation privilege
These categories are explained in more detail below. If a communication does not fit one of these types, it will generally not be privileged. And even if it does, you must maintain confidentiality – if privileged material is shared too widely or publicly, the privilege can be lost.
Copying a lawyer into an email, or writing ‘Privileged and Confidential’ on a document, does not automatically make it privileged.
Legal advice privilege
Legal advice privilege protects confidential communications between a client and their lawyer made for the sole or dominant purpose of giving or obtaining legal advice. It includes communications that help keep the lawyer and client up to date so the lawyer can give advice when needed. It also covers documents, including a note prepared by a client, created for the dominant purpose of obtaining or providing legal advice.
If you email your solicitor (or in-house counsel) asking for legal advice on a contract clause, and they reply with advice, those communications will usually be protected as long as they remain confidential.
A few key points that often surprise businesses:
Legal advice must be given in a legal context
Legal advice privilege is not designed to protect purely commercial discussions. The advice needs to relate to a legal context for example your rights, liabilities, obligations, remedies or legal risk.
Legal advice privilege generally does not cover third parties
As a general rule, communications with third parties (such as consultants, PR advisers or accountants) are not covered by legal advice privilege. Those communications might only be protected (if at all) under litigation privilege and only when the litigation criteria are met.
It is a privilege of lawyers, not other professional advisers
The Supreme Court confirmed that legal advice privilege is confined to advice from members of legal profession and does not extend to legal advice given by accountants (even if the advice is “legal” in nature).
In-house legal advice can be privileged but be careful with mixed roles
Legal advice given by in-house solicitors attracts privilege in the same way as advice from external solicitors. However, in-house lawyers may have mixed legal and commercial roles and modern communications often involve multi-recipient emails. It is therefore important to ensure the ‘dominant purpose’ of the communication is legal advice and to keep the distribution list tight.
Be clear who the ‘client’ is within the organisation
In a company, the ‘client’ for privilege purposes may be a defined group authorised to seek and receive legal advice. The courts have, in some contexts, treated the ‘client’ as a small team to deal with an issue, rather than the whole organisation, meaning communications between lawyers and other employees may not be covered by legal advice privilege in the same way. In practice, it is sensible to agree internally who will instruct lawyers and who will receive advice, especially for sensitive matters.
Litigation privilege
Litigation privilege applies when legal disputes are underway (or reasonably expected). It protects confidential communications between lawyers or their clients and third parties, where the communications are made for the sole or dominant purpose of obtaining advice or information in connection with existing or reasonably contemplated litigation.
A helpful way to remember the litigation privilege test is that it usually requires:
- Litigation to be in progress or in contemplation (more than a mere fear or possibility).
- The communication/document to be created for the sole or dominant purpose of conducting that litigation (for example, preparing evidence or advice for the case).
- The litigation to be adversarial, not purely investigative or inquisitorial.
Suppose your company anticipates a dispute with a supplier escalating to litigation. Emails discussing the facts to help prepare the case or communications with an external technical expert analysing evidence for your legal team may be protected by litigation privilege – provided litigation was reasonably in contemplation at the time, the communications were confidential and the dominant purpose was preparing for that dispute.
Two practical points worth highlighting:
You do not necessarily need a lawyer on every communication
Unlike legal advice privilege, litigation privilege does not always require a lawyer to be a sender or recipient. It is the existence (or contemplation) of adversarial litigation and the dominant purpose of the communication, that triggers protection.
Investigations can be tricky
Businesses often commission internal investigations when issues arise. Whether investigation materials are privileged depends heavily on purpose, timing and how the work is structured. Privilege is more likely to apply where litigation is reasonably contemplated and the dominant purpose is preparing for that litigation, otherwise the protection may not apply (or may apply only to narrower lawyer-client advice communications).
Practical tips how to preserve legal privilege in everyday business
Legal privilege is not automatic – it is something you need to actively protect. With a few simple habits, you can preserve it without slowing down your work. Here are some tips:
- Avoid restating legal advice in general communications, for example board minutes.
- Involve lawyers early.
- Keep communications confidential and limit circulation to need-to-know only.
- Be clear who is instructing lawyers and who receives the advice.
- Separate legal advice from general commercial discussions.
How privilege is commonly lost
Businesses rarely ‘waive privilege on purpose.’ More often, privilege is lost through everyday communication habits.
- Sharing legal advice too widely – for example, forwarding it to people who do not need to see it or sending it outside the business.
- Mixing legal and non-legal content – combining legal advice with business and operational discussions in the same email or document can make it harder to claim privilege.
- Using only part of the legal advice – this is known as ‘cherry picking.’ If a business refers to legal advice to support a decision but keeps the rest of the advice private, privilege may be lost. Courts and regulators generally expect fairness. If you rely on some of the advice, you may have to disclose all of it.
What to do if privileged material is shared by mistake
Mistakes happen – especially when you are dealing with large volumes of emails, attachments and documents disclosure.
If you accidentally send privileged material to an opponent (or disclose in litigation), speak to your lawyers immediately. There are procedural protections in the court rules for inadvertent inspection. Under CPR 31.20, where a party inadvertently allows a privileged document to be inspected, the receiving party may only use it (or its contents) with the court’s permission.
From a practical business perspective, quick steps usually include:
1. Stop further circulation
Ask recipients not to forward or use the material while legal teams assess.
2. Preserve evidence of the mistake
Keep a record of what was sent, to whom and when (this often matters when arguing whether the mistake was obvious and how it should be handled).
3. Do not try to ‘fix’ the record by deleting documents
If litigation is active or in reasonable contemplation, document handling should be directed by your lawyers.
If you receive someone else’s privileged material by mistake, do not assume you can freely use it. The safest step is to stop reading and get legal advice promptly on how to handle it.
Conclusion and how EM Law can help
Legal privilege is a powerful protection for businesses. It gives businesses the space to seek legal advice and prepare for disputes without worrying that those conversations will later be exposed.
However, privilege can easily be lost – especially when overlapping legal and commercial discussions, multi-recipient emails or fast moving disputes.
If you would like support with handling a sensitive dispute or reviewing document-handling and disclosure processes or if you have any questions about the above, please get in touch with us here.
