Consultation with Non-Lawyers is Not Privileged at Common Law

Abstract

English law has clarified the scope of legal advice privilege ('attorney-client privilege') and confirmed that only lawyers and not, for example, accountants, can give such privileged legal advice and support. There are sound reasons for sustaining this clear rule. First, confining this privilege to qualified lawyers avoids uncertainty concerning borderline claims for privilege concerning the 'legal input' provided to clients by non-lawyers. Secondly, the proposal that non-lawyers should be capable of giving advice protected by legal advice privilege would require legislative consideration. Judicial decision-making is an inappropriate instrument to use when making such finely adjusted legal changes. Thirdly, judicial intervention would be inappropriate because the UK Parliament in modern times has chosen not to extend the privilege to non-lawyer professionals whose advice might contain pure legal advice, including non-lawyer tax advisors.

Keywords: legal advice privilege, lawyers, privilege confined to advice given by lawyers

JEL Classification: K1, K2, K10, K4