No professional advisor worth their salt is going to suggest that any particular option is without risk. Risk-free just doesn’t exist. (If your financial advisor suggests a “risk-free” investment, walk away!)
What clients often need from their professional advisers is a risk analysis – something that sets out where the risks are most likely to arise and how they compare for different options. The client then makes their choice on the basis of their commercial objectives and their appetite for risk.
As a patent attorney, the advice I give to my clients in relation to patent matters is, in principle, subject to privilege*. In the UK that means, among other things, that it won’t form part of the evidence that comes before the court in the event of litigation. This is useful because most clients would want to avoid the professional advice (the risk analysis, for example) from being part of the evidence.
But, if the advice I give my client is shared with others, this means the right to privilege is “waived” and so the advice becomes visible to the court.
The perennial difficulty when thinking about privilege is identifying who is and who is not the client. For the purpose of privilege, the client is not necessarily everyone in the client’s business. Where a multinational has many hundreds of thousands of employees, for example, it seems logical that disseminating the advice throughout the enterprise amounts to waiving privilege.
Perhaps the greatest challenge in all this lies in determining how widely it is possible to share the advice within a business without waiving privilege.
In recent years, in some cases, courts have decided that, for the purposes of legal privilege, the “client” may be just a handful of people – only a tiny subset of a larger business. So disseminating outside that small group has been found to amount to waiving privilege.
The Court of Appeal has this week been asked to provide some clarity on this tricky issue. If and when they do, the risk of accidentally waiving privilege should reduce. But remember, you can’t eliminate risk altogether. After all, there is no such thing as risk-free.
* Section 280, Copyright, Designs and Patents Act, 1988
The profession needs ‘authoritative and correct’ guidance on legal professional privilege (LPP) to deter the current ‘dismay’ felt among lawyers, the Court of Appeal heard today.