Court of Session rules legal professional privilege not overridden by third party complaint

A new and important Court of Session judgment has today reaffirmed the principle of legal privilege between solicitors and their clients.

A hearing at the Inner House of the Court of Session has determined that the Scottish Legal Complaints Commission (SLCC) is not entitled to recover legally privileged information in a solicitor’s file to investigate a third-party complaint unless the client gives permission.

The SLCC can investigate a complaint about someone else’s lawyer if the complainer has been directly affected by a poor service provided to the client. In this case, the third party complainer raised a complaint about the solicitor who acted for her estranged husband. The SLCC brought a case against the solicitor, who had acted for the husband, to recover their file.

The SLCC argued that due to its role in handling legal complaints, legal professional privilege would not be breached were they to have access to the file. The legal complaints body also argued that it should be able to use the Legal Profession and Legal Aid (Scotland) Act 2007 Act to override legal professional privilege in order that it might achieve its statutory objectives.

Both the Law Society of Scotland, the professional body for solicitors in Scotland, and the Faculty of Advocates thought that the case raised significant legal questions and asked permission to intervene so their arguments could also be heard by the court.

Lady Dorrian, Lord Justice Clerk, sitting with Lords Malcolm and Turnbull, found that the client is entitled to assert their privilege and the solicitors may not disclose to the SLCC any communications or documents within the scope of that privilege without the client’s consent.

Sheila Webster, Vice President of the Law Society of Scotland, said: “This case dealt with one of the most basic and fundamental principles of our legal system; that a client should be able to speak to their solicitor and know that legally privileged information will be kept confidential.

“When the SLCC told us of their intention to ask the court to confirm they had powers to require the whole client file, including legally privileged information between that client and their solicitor, it could not go unchallenged. I am glad that such an important part of the solicitor/client relationship has been protected by the court.”

Roddy Dunlop KC, Dean of the Faculty of advocates, who appeared in the case for both interveners, also welcomed the decision.

He said: “Legal professional privilege has long been recognised as a fundamental human right. It would be concerning if third parties could override it by the simple expedient of bringing a complaint against another party’s lawyers. The Faculty is pleased to see the crucial importance of legal professional privilege being recognised by the court in this way.”

The judgment is available to read