On 14 June, a briefing from Eversheds Sutherland says that a recent High Court case highlights the issue of legal privilege in the context of investigations. It says that there is a growing trend for financial institutions to commission external law firms to conduct internal investigations into complex issues. Maintaining privilege over documents produced during the course of an investigation is imperative to avoid disclosure of potentially damaging investigatory materials. It explains that to establish LAP, the communication must be between lawyer and client and for the dominant purpose of seeking and receiving legal advice in a relevant legal context. Gathering information in order to advise on an investigation, for example, in the form of an interview note, will not be covered by LAP. Recent case law has taken a narrow view when considering what is the ‘dominant purpose’ of an investigation. The briefing includes 6 steps one can take to protect your position.
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