For a communication or document to be privileged it must be confidential. However, there need not be an express obligation of confidence. Such an obligation can be implied, and will almost certainly be implied where there is a solicitor / client relationship.
The requirement of confidentiality would prevent privilege arising, for example, for legal advice posted on an internet forum, or for a solicitor’s note of open court proceedings (assuming the note does not betray the trend of the solicitor’s legal advice to the client, in which case it will be privileged on that basis).
Confidentiality will not, however, in itself give rise to privilege. It is perfectly possible that highly sensitive confidential documents will not be privileged and must be disclosed in the course of court proceedings or to a regulator.
Note: Content up to date as at 22 April 2021
Click here to return to the “Handy client guide to privilege” home page, or on the links below to access information on other privilege topics:
- Litigation in reasonable prospect
- Dominant purpose of litigation
- Lawyer/client communications
- Dominant purpose of giving/obtaining legal advice
- Documents evidencing privileged communications
- Subsequent dissemination of privileged material