David Burrows shares his reflections on legal advice privilege & the Panama Papers
The leaked Panama Papers raise questions for a lawyer asked to advise in relation to documents which may provide evidence of fraud, for example a family lawyer who is asked for advice on the documents of an allegedly non-disclosing spouse. If fraud is proved, information from the leaks could be used to set aside a matrimonial finance order (per Sharland v Sharland [2015] UKSC 60, [2016] 1 All ER 671) if it shows non-disclosure. However, prior questions arise before documents can be used as part of the client’s case. The first is: are any of the leaked documents covered by legal professional privilege (LPP)—in this case, its major branch, legal advice privilege (LAP)—which would make them beyond the range of disclosure in court proceedings?
This article first defines LAP. Second, it asks whether LAP applies to leaked documents according to whether they were part of a “relevant legal context”; and, third, it questions whether LAP may not arise in the first place,
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