Privilege

ICW Declaration on Legal Professional Privilege                                           (Version 1)

The concept of protected communications between lawyer and client was first recorded in England back in the year 1577. It stems from the “oath and honour” of the lawyer and is for the benefit of the client. It is based on the fundamental principle that a client must be able to communicate frankly and fearlessly with their lawyer to obtain proper advice. Without that communication being protected, the quality of the advice by the lawyer would suffer as clients would be discouraged from making full disclosure to their legal representative for fear of self-incrimination or disclosure of sensitive commercial matters.

The status and application of legal professional privilege varies across jurisdictions, but the core tenet of enabling client and lawyer to communicate with total candour is central to the legal profession. In-house Counsel Worldwide (ICW) supports the universal concept of legal professional privilege or a professional doctrine of confidentiality for all lawyers regardless of whether they are in private practice or work for an organisation as an in-house lawyer.

ICW believes that as in-house counsel are subject to the same professional standards and duties as their private practice counterparts, their clients deserve the same protection. There are sufficient restrictions on the application of the rule to ensure its application is limited to instances where the dominant purpose of the communication for which privilege is sought is to obtain legal advice and not commercial or other input.

ICW supports ongoing education for all lawyers, and believes that in-house lawyers need to be aware of the rules attaching to privilege in the jurisdictions in which they operate and to educate their organisation about the use and retention of privilege.

ICW does not condone any form of differentiation in relation to the application of privilege or confidentiality as between private practitioners and in-house counsel within a jurisdiction. Our aim is for a universal code of privilege that facilitates cross-jurisdictional engagement and enshrines the rights of clients to choose to employ in-house counsel instead of, or in conjunction with, external lawyers with the same client protection.

18-06-13