Collaboration software like Microsoft Teams, Google Workspace and Slack are used prevalently by in-house legal teams, but how might the convenience of using these tools affect legal professional privilege?
The good news is that LPP (Legal Professional Privilege) is retained in the same way as it is for more traditional communications like email. A quick refresh of the requirements for LPP to apply to a communication:
- A “lawyer” must be present;
- The “client” must be present;
- It must contain “legal” advice;
- It must be “confidential”;
- Its dominant purpose is giving or receiving legal advice
It might sound obvious but incorrectly made assumptions can result in misunderstandings, mistakes, and poor outcomes, so if you haven’t considered whether using collaboration tools might erode your legal professional privilege, now’s the time to do so.
Digging into each requirement for LPP to apply in turn:
- The lawyer present must be the legally qualified individual and does not extend to other professional advisors such as accountants.
- The client must be present - sounds obvious but from the in-house perspective it’s not always clear who the lawyer’s client is. Legal functions often work across the business, supporting on a multitude of legal and commercial matters. An in-house lawyer’s client will often be the Board or similar executive leadership team however if it’s not obvious, it’s worth formally recording this in a policy or document and which is available to all staff.
- In-house lawyers often tread a fine line in giving pure legal advice and commercial, administrative, or executive advice. Only legal advice benefits from privilege. That privilege could be inadvertently lost in the many channels, chat, and other functions available in collaboration tools.
- Privilege only attaches to confidential information, so in-house lawyers should think about who the recipients of the legal advice will be. Giving advice within functions available in collaboration software (e.g. channels and threads) which are visible to all staff may not meet the confidentiality threshold and particularly if it’s also unclear who the client is.
- Information is only privileged if the dominant purpose is the giving or receiving of legal advice, which excludes purely commercial discussions or records documenting a decision-making process.
Practical hints and tips
- Have a policy setting out how your legal function operates. Define who the client is, have a process for engaging with the legal function and cite the correct channels for doing so. Be clear about which collaboration tools are (and aren’t), appropriate when engaging with the legal function.
- Consider labelling legal channels as being ‘privileged’ and consider limiting their use to classes of individuals which aligns with who your client is.
- Control the distribution of legal advice. Restrict communications on a ‘need to know’ basis, mark communications with legally privileged and confidential or adopt #LPP, #confidential, #privileged (or similar) tags and labels as appropriate to channels and instruct recipients not to forward communications.
- Legal advice should ideally be stored separately from other communications (whether by channel, folder, email etc.). Legal advice stored within the business’ information system should be labelled, tagged or carry some other sensitivity marking which clearly identifies such communications as legal advice and confidential.
- Be careful about using AI transcription tools (inadvertently or otherwise) for online meetings which record legal and non-legal discussions. Ensure your policy prohibits staff using such transcription tools when engaging with lawyers and / or legal teams as good practice.
- Lock down visibility of legal communications and files. Apply controls to information management systems (networks and cloud environments) and consider applying password protections to documents to limit their disclosure if shared in error.
- Train non-legal staff on the importance of maintaining LPP or have guidance and policies available on what it is, why it matters, and what staff should and shouldn’t do when engaging with the legal function.
- Regularly audit who has access to legal information systems such as workspaces (networked and cloud), email groups, channels, and drives. Audit the use of those collaboration tools in use as well as the adoption and effective use of labelling practices.
- When implementing any new collaboration tools, review the terms and conditions to check what access rights and rights of disclosure the provider has over information retained in the collaboration software, and what data retention periods apply.
If you have any questions regarding Collaboration Tools and Legal Professional Privilege, please reach out to a member of our in-house team here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
