Overseas In-house lawyer's advice covered by legal advice privilege

There is no additional requirement for in-house foreign lawyers to be "appropriately qualified" or recognised or regulated as a "professional lawyer" for legal advice privilege to extend to communications between them and company employees.

The requirement for legal advice privilege to attach to communications is that the advisor was acting in their capacity as a lawyer. The court confirmed these tenets of English legal advice privilege in PJSC Tatneft v Gennady Bogolyubov & Ors.

Facts

Igor Kolomoisky, the second defendant, filed an application arguing that Tatneft, a Russian company, incorrectly asserted legal advice privilege over communications between employees/officers of the company and Russian lawyers who were members of its in-house legal team. 

He asserted that legal advice privilege had been incorrectly claimed because in Russia in-house lawyers are not members of the Russian Bar and their activity is not subject to the Federal Law regulations governing advocates. The closest equivalent to legal advice privilege in Russia is "advocate's secrecy", which applies to advocates but not to non-advocate in-house lawyers.

Further, as a matter of English law, legal advice privilege could not apply to communications with and documents generated by the in-house lawyers at Tatneft as they are not “appropriately qualified” foreign lawyers. Under English law legal advice privilege only applies to (a) “professional lawyers” i.e. legal advisers who are professionally qualified and members of a professional body, (b) in-house lawyers if they are admitted to practice and regulated, and (c) foreign lawyers if they are “appropriately qualified”.

Tatneft accepted that the relevant individuals were not advocates under Russian law, but submitted that as a matter of English law, legal advice privilege applied: there is an in-house legal department at Tatneft and legal advice privilege attaches to communications between its members and employees of Tatneft on the basis that as a matter of English law, legal advice privilege applies to advice obtained from foreign lawyers including in-house lawyers. Tatneft contended that the Russian law of advocates’ secrecy was irrelevant in this situation.

Decision

Mrs Justice Moulder held that it was the "function" of the relationship that was important and not the "status" of the lawyer. The only requirement for legal advice privilege to attach is that the person giving the advice should be acting in the capacity or function of a lawyer.

The judge noted that it would be unfair for the court to hold that legal advice privilege did not extend to in-house lawyers in Russia on the basis that they, as a matter of local law, cannot be advocates. The implication would be that legal advice privilege could never extend to communications with them, despite the fact that the category of in-house lawyers has been accepted, as a matter of English law, as being covered by legal advice privilege.

Comment 

This decision helpfully clarifies the scope of legal advice privilege and its application to in-house foreign lawyers. The decision will provide comfort to foreign parties litigating in the English courts that their confidential, privileged communications with their legal advisors will be protected. It confirms that foreign parties will not be disadvantaged when providing disclosure due to the qualifications of, or regulations relating to, their in-house legal advisors under local law.