Legal advice from a non-qualified legal adviser is not confidential

Employers should be aware of the recent decision of the Court of Appeal which made it clear that “legal advice privilege” does not apply beyond the traditional legal professions of solicitor, barrister and chartered legal executive.

Any advice given by a solicitor to his client and any correspondence between the solicitor and his client is covered by legal advice privilege.

This means that the solicitor and his client can be frank with each other in relation to the legal problem that the employer faces. The solicitor can be candid and open in the advice that he gives to his client without the risk of anybody else becoming aware of that advice or having the right to read that correspondence.

However, legal advice privilege does not apply to HR consultants, HR officers within a company or accountants; nor does it apply to advice provided by a legal advice helpline.  Employers should therefore be aware that if litigation were to ensue, the claimant’s solicitor or adviser could seek disclosure of any correspondence, emails, notes of meetings or attendance notes that passed between employer and legal adviser.  If the legal adviser in question was not a qualified solicitor, barrister or chartered legal executive, the documents would have to be disclosed.

This rule also means that a non-qualified legal adviser could be made subject to a witness order and compelled by a tribunal to give evidence in relation to the advice that he or she had given to the employer.

Although employers may be tempted to opt for the cheaper option of advice from non-qualified lawyers, the case recently decided by the Court of Appeal outlines the pitfalls should litigation ensue.