Legal Professional Privilege: Overview and Practical Considerations for schools

There are many occasions when a matter becomes contentious that you will want to consider whether a communication is privileged and therefore exempt from disclosure. Legal professional privilege (LPP) protects certain confidential documents and communications from disclosure to a third party, including the court. Once privilege is established the court cannot override it to order disclosure.

There are two types of LPP:

• Legal advice privilege;
• Litigation privilege.

It is important for schools to properly understand the concept of LPP, when LPP applies and when it can be lost, as failure to do so could adversely affect a school’s position in any future dispute or litigation.

Legal Advice Privilege

Legal Advice Privilege (LAP) protects certain confidential communications between a lawyer and a client, provided that the following conditions are met:

• the communication is between a client and their lawyer. If the person giving advice is not a lawyer, LAP is unlikely to apply and so the advice may be disclosable in future litigation or in response to a Subject Access Request;
• the communication is confidential and for the dominant purpose of giving/receiving legal advice.

Below are some tips for ensuring that a communication is privileged.

1. What Counts as Legal Advice

• Legal advice is broadly defined and goes beyond explaining the law. It includes advice on what schools should be alert to and sensibly do within a legal context.
• For LAP to apply, the communication must take place in a legal context, meaning it relates to a school or trust’s legal rights, obligations, or remedies.

2. Scope of Protected Communications

• LAP covers not just initial requests for legal advice but also ongoing communications between schools and their lawyers aimed at keeping both parties informed so advice can be given as needed. This may include informal email exchanges that are part of the advice process.
• However, privilege does not extend to pre-existing documents simply because they are attached to a privileged email. Each document must be individually assessed.

3. Group Emails and Distribution Lists

• Including a lawyer in a group email does not automatically make the entire chain privileged. Privilege applies only to exchanges directly involving legal advice. For example, if board members discuss a settlement without seeking legal input, those emails are unlikely to be privileged, even if the lawyer is copied in.

4. Non-Legal Purposes

• LAP does not cover communications that serve purely commercial or strategic purposes. If, for example, your school is discussing governance strategy, consider whether the lawyer’s role is to provide legal advice or broader business input. The court may assess whether the lawyer was applying a legal lens when reviewing the material.

5. Internal Sharing of Legal Advice

• Privileged advice shared within schools or trusts (e.g., with the board of directors or employees who need it for their work) may remain protected.
• However, not all internal documents are automatically privileged. For instance, board minutes summarising legal advice might not attract privilege, depending on their content and context.
• Be very cautious about sharing privileged advice outside the group of people within the school or trust who are authorised to request and receive legal advice, as doing so could waive confidentiality and result in the loss of privilege. Any internal sharing should be done on the express terms that the material is to remain confidential and is not to be made available outside the defined limited group of recipients.
• Whilst forwarding your lawyer’s advice to external third parties such as your external HR advisers or payroll may seem like a good idea, this may mean that the confidentiality of the advice is lost and therefore so is the privilege attaching to it. Therefore, be very careful about sharing legal advice from your lawyer with anyone other than those people for whose benefit it has been given and on the strict condition that they must keep it confidential and not share it any further.

6. Information from Third Parties

• Information gathered from third parties for the purpose of instructing lawyers is not protected by LAP. Only the communication with lawyers and the advice they provide is covered.

Litigation Privilege

Litigation privilege (LP) protects confidential communications between a lawyer, their client and any third parties from disclosure provided that the following conditions must be met:

• It must be a communication between a lawyer (acting in a professional capacity) and a client, or between either of them and a third party (or be a document created by or on behalf of the client or the client’s lawyer).
• It must have been made for the sole or dominant purpose of litigation which is pending, reasonably contemplated or existing.
• Litigation must be adversarial, as opposed to investigative or inquisitorial.
• In most and arguably all cases, it must be confidential.

LP is therefore broader in scope as it extends to communications with third party. Therefore, although advice given to a school by an internal HR adviser or external HR consultancy is unlikely to attract LAP (unless they are a lawyer), the communication may still be protected by LP depending on the circumstances of the case and what is being discussed. For example, discussions about an Acas Early Conciliation (EC) notification with a third party are likely to attract LP because the Acas EC process is part of the employment tribunal litigation process. Similarly, discussing with a third party a legal letter or letter before action intimating a claim may also attract LP.

Subject Access Requests (SAR)

In accordance with the ICO’s guidance, data to which LPP applies is exempt from the right of access, meaning that you do not need to disclose it in response to a SAR. To prevent inadvertent disclosure, you should have a system in place which allows you to easily identify communications or data that are subject to LPP. This could be, for example, filing emails between you and your lawyers into a separate folder marked ‘Confidential and Legally Privileged’ or adding these words to the subject line of any email sent to your lawyer where you are seeking legal advice or discussing existing, pending or reasonably contemplated litigation with them or any third party.

Loss of privilege

LPP can be lost in a number of ways including:

• Loss of confidentiality. If the confidentiality attaching to the communication is lost, so is the privilege.
• By referring to the legal advice or communications in open correspondence or discussions. For example, statements such as “we have been advised that…” or “the legal advice we have received is…” will likely result in LPP being lost. Whilst this can be tempting, in a bid to give weight to the school’s position, the consequences are an inadvertent waiver.
• In litigation through:
  • statements of case or pleadings;
  • documents referred to in the statement of case; or
  • in witness statements.

It must be noted that where privileged material is being deployed to advance a party’s case, it is not possible for that party to waive privilege in part. The waiver will potentially apply to the entirety of the advice / communications meaning you will need to disclose all of the material to the other side and the court.

Privilege in Internal Investigations

When incidents arise at schools, often a fact-finding exercise needs to be undertaken. Whether LPP applies to communications, notes and documents arising from these investigations depends on the circumstances.

• LAP may apply where a lawyer is involved in the investigation, and they provide advice in a ‘relevant legal context’. Legal advice given to the investigator by the school’s lawyer will also likely attract LAP.
• LP is unlikely to protect investigations conducted internally unless adversarial proceedings are existing, pending or reasonably contemplated. In most cases, this is unlikely during early-stage enquiries or in response to an employee or parental complaint. If adversarial proceedings are existing, pending or reasonably contemplated, it is important that schools:
• Maintain a clear documentary trail evidencing at what point litigation was reasonably contemplated and decision made regarding the investigation.
• Ensure documents were created for the dominant purpose of that litigation.

Practical tips for maximising protection of privilege in internal investigations

1. Engage lawyers

• Engage lawyers to either undertake the investigation themselves or to appoint an investigator. Privilege can attach to investigation reports in circumstances where investigators are engaged by a lawyer and not directly by the school or trust. This way, the investigation report will be produced for the dominant purpose of the lawyer providing advice to the school or trust.
• So that privilege may attach to communication with any third-party experts or the appointed investigator it should come through the lawyer and not the school, save for any logistical matters.

2. Legal-led reporting

• Where investigators are engaged through a lawyer, the dominant purpose of the investigation needs to be clear and should be reflected in all communications including in the initial briefing engaging the lawyer as well as in the terms of reference provided by the lawyer to the investigator.
• The investigator can then provide the report to the lawyer so that the investigation report and the resulting advice provided to the school on, for example, safeguarding risks and obligations, may maintain privilege.

3. Documents

• Communications related to legal advice must be marked as “privileged and confidential”.
• Privileged and non-privileged materials should be kept separate.

4. Internal circulation

• Limit circulation to a strictly “need to know” basis. Particular care should be taken in relation to the distribution of the investigation report to avoid waiving privilege.

4. Avoid summarising

• Avoid summarising legal advice in in new documents, as this may risk waiving privilege. Care should also be taken in disclosing the findings of the investigation report to the employee. This must come from the employer and must specifically be for the purpose of allowing them to respond in relation to any arising disciplinary process. This process must be treated as separate and not led by the lawyer.

6. Review your policies

• Ensure they provide sufficient flexibility for the school to determine whether to investigate and the manner in which the investigation is undertaken, including whether they permit for an external investigator to be appointed.

Engaging an independent investigator via Winckworth Sherwood allows us to support you in the background on matters of law which may protect material from future disclosure. Our investigations service is comprehensive and means we can provide different support at different stages, both to ensure you are able to demonstrate maintenance of independence and to maximise the likelihood of legal privilege attaching to investigation documents. In particular, we can:

• Source a highly skilled investigator with the appropriate knowledge and expertise from our pool of investigators.
• Provide legal advice to the investigator at the request of the school or trust.
• On completion of the report provide advice on recommendations and next steps.
• Provide advice on any formal action arising from the report.
• Provide advice on evidence sharing / disclosure of investigation report.
• Liaise with third party including the Department for Education, local authorities, Teaching Regulation Agency, Regional Schools Commissioner.

Our specialist Schools HR team of education-employment lawyers are experts in advising on all manner of HR and employment law issues faced by schools.

For more information about our Schools Investigation Support service, please contact either Andrea Squires, Partner and Head of Education on 020 7593 5039, Aida Smajlovic, Partner and Head of Schools HR, on 020 7593 0278 or asmajlovic@wslaw.co.uk or our School Investigations Lead, Penny Reid on 0345 070 7437 or by emailing schoolinvestigations@wslaw.co.uk