Legal Professional Privilege in Corporate Criminal Investigations: challenges and solutions in the modern age

This article considers two areas that arise in the context of corporate criminal investigations relating to claims of legal professional privilege: the extent to which litigation privilege may attach to communications made in the context of such investigations; and the difficulty of identifying the client for the purposes of legal advice privilege. These issues are of particular significance where a company is or may be the subject of an investigation by specialist prosecuting authorities, such as the Serious Fraud Office. We identify the policy considerations justifying litigation privilege and whether they continue to explain the current ambit of the privilege. With particular reference to the extent to which the privilege is capable of attaching to communications made for the purpose of working towards a potential settlement, we consider how the constraints upon its ambit operate in the context of corporate criminal investigations. In relation to legal advice privilege, we demonstrate that it is possible to give a coherent explanation of the jurisprudence in this area which, whilst accepting that decisions are fact-specific, should enable corporations and the courts to identify the client within the corporation with a greater degree of confidence.