In-House Counsel Masterclass: The CPD Regulatory Hour MHC.ie

Welcome Declan Black Managing Partner Mason Hayes & Curran 2

Introduction Guide to Good Professional Conduct for Solicitors Chapter 4 – Legal Professional Privilege & Confidentiality Flyer Q&A Conversation not over! 3

Legal Professional Privilege Niall Michel Partner Mason Hayes & Curran 4

What does the Guide tell us? Describes LPP rule Solicitor’s duty of confidence wider than LPP “Fundamental feature” of administration of justice Remember to assert LPP, including in AML and Tax contexts LPP can be lost or waived Exceptions to LPP 5

Fundamental Feature of Administration of Justice “… more than a mere rule of evidence…a fundamental condition on which the administration of justice as a whole rests.” Why? Rooted in balance of public interests Adversarial system Always a context 6

Confidentiality vs LPP Solicitor’s duty of confidence has wider coverage than LPP All privileged communications are confidential Not all confidential communications are privileged Context determines maintainability of DOC 7

What is covered by LPP? 2 limbs to LPP rule Legal advice privilege Litigation privilege 8

Elements of Legal Advice Privilege Confidential Communications Between client and professional legal adviser In course of professional legal relationship For purpose of seeking or giving legal advice 9

Elements of Litigation Privilege Confidential Communications Between client and lawyer lawyer and third party client and third party With dominant purpose of preparing for reasonably apprehended or actual litigation 10

LPP can be Lost or Waived Loss Waiver – express or implied; partial or whole Avoiding implicit waiver Common interest Implicit waiver not lightly found, but can happen: Deploying contents in pleadings; affidavits/evidence Putting contents in issue Sending to adversary Inadvertent disclosure 11

Exceptions to LPP Where balance of public interests changes Communications In furtherance of crime, fraud or “moral turpitude” In furtherance of conduct injurious to interests of justice Where disclosure in best interests of a child in proceedings Where disclosure would establish innocence As between parties with common interest As between parties enjoying joint privilege If statute so provides 12

Where LPP does not Apply Communications intended to be repeated to adversary Actual communications with adversary in contemplation of litigation Facts “patent to the senses” vs facts communicated Pre-existing, non-privileged, documents sent to lawyer [In-house counsel only]: to communications relevant to EU- led competition investigations/proceedings 13

Duration of LPP ‘Once privileged, always privileged’? Legal advice privilege Litigation privilege 14

Thank you for your Attention! 15

The Solicitor’s Relationship to the Court & other Matters Emily Egan McGrath BL 16

Q&A 17