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06 October 2020
There is no additional requirement for in-house foreign lawyers to be appropriately qualified or recognised or regulated as professional lawyers 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 adviser was acting in their capacity as a lawyer. The High Court confirmed these tenets of English legal advice privilege in PJSC Tatneft v Gennady Bogolyubov.
Igor Kolomoisky, the second defendant, filed an application arguing that Tatneft, a Russian company, had incorrectly asserted legal advice privilege over communications between employees and officers of the company and Russian lawyers who were members of its in-house legal team.
Kolomoisky 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 applies only to:
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.
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, even though the category of in-house lawyers has been accepted, as a matter of English law, as being covered by legal advice privilege.
This decision 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 advisers will be protected. It confirms that foreign parties will not be disadvantaged when providing disclosure due to the qualifications of, or regulations regarding, their in-house legal advisers under local law.
For further information on this topic please contact Emily Saffer or Daniel Wyatt at RPC by telephone (+44 20 3060 6000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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