Is legal professional privilege lost if a document is made generally available?

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In a recent case [1], the High Court considered whether the claimant had waived privilege in confidential documents simply because they had been seen by someone other than the claimant and his lawyer.

An employee of Fulbright & Jaworski International LLP (FJI) forwarded confidential documents sent to her personal email address by the claimant, Mr Shepherd (with whom she was having a relationship) to her work email account. When she opened the documents at work, and unknown to Mr Shepherd, FJI’s server automatically stored a copy of the documents. During employment tribunal proceedings between FJI and the employee, the confidential documents were disclosed. The documents in question contained highly personal information in connection with Mr Shepherd’s divorce proceedings with his former wife. When Mr Shepherd found out about the disclosure, he brought a claim in the High Court for delivery up or destruction of the confidential documents on the basis that they were privileged and later made an application for summary judgment.

At the hearing of the application, the court considered several issues but for the purposes of this article, the key issue was whether Mr Shepherd’s act in emailing the documents to the employee amounted to a waiver of privilege.

The privilege in question was legal professional privilege – that which arises in correspondence between a client and his lawyer. For a document to be so privileged, it must be confidential and it might be said that the loss of confidentiality might also equate to a loss of privilege. However, loss of privilege will depend on how that loss of confidentiality arose. If a document is shared outside of the solicitor/client relationship or made available generally then privilege may be lost. FJI and its lawyers argued that confidentiality had been lost by virtue of the documents being forwarded to the employee’s work email account for which she could have had no expectation of privacy given the firm’s policies.

This argument was not accepted by Mrs Justice Simler DBE who stated that “the critical question is whether the document and its information remain confidential in the sense that it is not properly available for use… documents communicated to a third party in circumstances expressly or impliedly preserving confidentiality against the rest of the world are unlikely to lead to privilege being lost”.

The judge did not accept that Mr Shepherd could have waived privilege in circumstances where he was unaware that the employee had forwarded documents to her work email account without his consent. The documents were quite plainly of a personal nature and the way that Mr Shepherd had sent the documents to the employee did not suggest he intended to waive privilege. Further, in relation to an implied waiver allegedly arising as result of the firm’s IT policy regarding privacy of emails, the Judge commented that this would be akin to saying that Mr Shepherd could have waived privilege through the employee accidentally leaving copies of the privileged documents on her desk and a colleague having seen them.

The documents were generated in the course of a solicitor/client relationship and were presumed to be confidential. The privilege which therefore attaches to them is a fundamental substantive right. Mr Shepherd clearly communicated the documents to the employee in circumstances which suggested (whether expressly or impliedly) that she should treat them as confidential. Privilege was therefore maintained.

Practical issues
The decision highlights the potential risks of forwarding emails and using work email accounts for personal or sensitive correspondence. The claimant was protected in this particular case but others might not be so lucky.

The decision does, however give reassurance that the Court will uphold a parties’ fundamental right to claim privilege in the legal advice it receives.

[1] Shepherd v Fox Williams LLP and others [2014] EWHC 1224 (QB)