Key differences in the legal privileges in the US and England

The US concepts of the attorney-client privilege and the work-product doctrine are rooted in England’s and Wales’s legal advice and litigation privileges. The primary purpose of the attorney-client privilege and the legal advice privilege is to foster frank communication, and the primary purpose of the work-product doctrine and litigation privilege is to protect the adversarial system. Although the general purposes behind the privileges may be similar in the US and England, there are differences in their application. A document that is privileged in the US may not be privileged in England and vice versa. For example, notes of employee interviews undertaken in the US as part of an English company’s internal investigation may be protected under US law, but may not be protected under English law. Consequently, the distinctions between US and English law may be critically important in international arbitrations, investigations, and cross-border lawsuits.  

This article provides a brief overview of the relevant privileges and their key differences. This discussion is limited to federal law, but beware that, depending on the case, state law may apply to the privilege analysis.

The legal advice and attorney-client privilege

Under England’s legal advice privilege, confidential communications between a client and a legal adviser are protected. It applies regardless of whether litigation is pending or contemplated. Similarly, the attorney-client privilege protects confidential communications between a client and an attorney for the purpose of obtaining legal advice. It, too, applies regardless of whether litigation is pending or contemplated.

In the US, a broad definition of client applies. For example, in the context of communications between in-house counsel and employees, communications between lower-level employees and counsel may be protected when the communication may assist counsel in providing legal advice to the corporation. Upjohn Co. v. United States, 449 US 383 (1981). In England, only communications with those employees authorized to request and receive legal advice are eligible for the legal advice privilege. Three Rivers Dist. Council v. Governor and Company of the Bank of England (No 5) [2003]. Also, in the US, the attorney-client privilege may be waived if the client discloses the communication to a third party. For instance, disclosure of privileged communications to an accountant generally waives the attorney-client privilege. Callavaro v. US, 284 F.3d 236 (1^st Cir. 2002). In contrast, under English law, disclosure of a privileged document to a third party may not waive the privilege if the disclosure is for a specific purpose such as disclosure to a regulator. Property Alliance Group v. Royal Bank of Scotland plc [2015] EWHC 1557 (ch). Moreover, under US law, the attorney-client privilege extends to protect communications with third-party experts so long as it is at the direction of counsel for legal advice. United States v Kovel, 296 F.2d 918 (2d Cir. 1961). Under English law, the legal advice privilege does not extend to protect such communications in this manner.

The litigation privilege and work-product doctrine

Under England’s litigation privilege, a communication between a lawyer and client or between a lawyer and a third-party witness or expert, or a document created by or on behalf of a client or the client’s lawyer is protected where the dominant purpose of that communication or document is for pending, reasonably contemplated, or existing litigation. Litigation must be a real likelihood rather than a mere possibility. USA v. Philip Morris Inc and British American Tobacco (Investments) Ltd [2003]. Under the US work-product doctrine, documents that are prepared in anticipation of litigation or trial are protected. There must be a substantial and significant threat of litigation, which is decided on a case-by-case basis at the court’s discretion. See, e.g., Club Gene and Georgetti, LP v. XL Ins. Am., 2021 WL 1239197 (N.D. IL 2021).

In the US, the work-product doctrine may be overcome if the party seeking discovery can demonstrate it has a substantial need for the materials and is unable, without undue hardship, to obtain the materials or their equivalent by other means. Fed. R. Civ. Pro. 26(b)(3). While ordinary work-product may be discoverable, impression work-product remain protected. In England, the litigation privilege cannot be overcome and it makes no distinction between ordinary and impression work-product.

Dual-purpose documents

In England, a dual-purpose document is privileged, if at the time of its creation, its dominant purpose is legal advice. Civil Aviation Authority v. R Jet2.com Ltd [2020] EWCA Civ 35. On January 9, 2023, the US Supreme Court heard oral arguments to decide whether the primary purpose test, the significant purpose test, or the bona fide test should be employed when determining whether a dual-purpose document is protected. The Court, however, subsequently dismissed the writ of certiorari as improvidently granted. In re Grand Jury, No. 21-1397. In most jurisdictions, the document is privileged if its primary or dominant purpose is legal advice. The DC Circuit finds a communication is privileged if its significant purpose is legal advice.  

Key differences

 

Issue	English approach	US approach
Who is the client?	Legal communications between in-house lawyers and only employees authorized to request and receive legal advice are protected.	Legal communications between in-house counsel and employees are protected when the communication assists counsel in providing legal advice.
Can the privilege be waived?	The legal advice privilege is likely not waived if the communication is disclosed for a specific protected purpose.	Attorney-client privilege is waived if a privileged communication is disclosed to a third party, such as an auditor. Selective waiver is generally not available.
Are documents prepared in anticipation of litigation always protected?	Litigation privilege cannot be overcome if the document has been prepared with the dominant purpose being for litigation.	Work product may be discoverable.
May communications with third parties be protected?	Communications with third parties may be protected by litigation privilege if communications are for the dominant purpose of litigation.	Communications with third parties may be protected where third parties are retained or supervised by counsel and their work is to enable counsel to provide legal advice.

Comment

In general, whether in the US or in England, an attorney should be involved at the outset, documents should be labelled private and confidential if appropriate, and legal advice communications should be separated from general business communications.