Court of Session confirms position on legal privilege and third party complaints

The Court of Session has confirmed its position on legal privilege in relation to third party complaints and has provided clarity on the limits of client confidentiality.

In its opinion published on Friday, 9 December 2022, the court has clarified that if a regulator, which includes the Law Society of Scotland and the Scottish Legal Complaints Commission, issues a solicitor with a statutory notice (under the Legal Profession and Legal Aid (Scotland) Act 2007), a solicitor is obliged to provide information which is confidential. The Court has also reaffirmed however that there are no circumstances in which a regulator can access material which is covered by legal professional privilege.

Murray Etherington, Law Society of Scotland President said: “The Court of Session has considered the concerns we raised around confidentiality. The opinion provides a clear direction on what is expected of solicitors in relation to third party complaints to ensure that they can be properly investigated. We are pleased that the intervention has upheld the importance of legal professional privilege.

“Following today’s opinion, we will review our guidance for our members.”