The House of Lords Goes Back to Basics

November 24, 2004

American courts universally recognize that: (1) the attorney-client privilege rests on society’s interest in clients providing complete and accurate information to their lawyers, so the lawyers can guide them to lawful conduct; and (2) the privilege offers absolute protection to communications that meet the required standards. The British House of Lords just issued an opinion reaffirming these two basic concepts.

In Three Rivers District Council v. Governor & Co. of the Bank of England (No 6), [2004] UKHL 48 (H.L. Nov. 11, 2004), available online in PDF format, five Lords (with such quaint names as Lord Brown of Eaton-under-Heywood) overturned a March 2004 Court of Appeals ruling, which dealt with advice that the Bank of England received from its lawyers about how to respond to an investigation into the BCCI scandal. The Court of Appeals had held that such “presentational advice” did not deserve privilege protection. The House of Lords rejected such a narrow approach, and found the advice fully protected by the attorney‑client privilege. Various Lords cited British authority from as far back as 1675 in holding that: (1) “the public interest justification for the privilege is the same today as it was 350 years ago . . . . If the advice given by lawyers is to be sound, their clients must make them aware of all the relevant circumstances of the problem. Clients will be reluctant to do so, however, unless they can be sure that what they say about any potentially damaging or embarrassing circumstances will not be revealed later” (id. para 54); and (2) “the privilege is absolute. It cannot be overridden by some supposedly greater public interest.” Id. para 25.

One of the Lords cited our Supreme Court’s Upjohn decision, and it would not be surprising if American courts reciprocate – by citing this reaffirmation by the country which invented the attorney-client privilege. The next Privilege Point will deal with a question the House of Lords left unanswered.