Case law: Tribunal clarifies when communications with law firm HR support service are protected by legal advice privilege

Potential clients considering using an HR support service provided by a law firm will welcome clarification on when communications between the service and the firm’s clients are protected by legal advice privilege, so they need not be disclosed to the other side in legal disputes, and when they are not.

A law firm offered clients HR support as part of a fixed-price package of employment law-related services and products. The employees providing parts of the service were not qualified lawyers.

The law clearly says that communications between clients and general HR advisors are not protected by legal advice privilege – they must be disclosed to the ‘other side’ if there is a legal dispute. However, it is not clear whether this applies where the HR advisors are employed by a law firm.

The Employment Tribunal ruled that, on the facts of the case, legal advice privilege did not apply to communications between a client and employees providing purely HR support services.

However, it went on to say that sometimes they would be protected by legal advice privilege, where the advice given is supervised. It said ‘Practical problems may arise where staff who are not legally qualified are involved in the giving of advice in a department supervised by qualified lawyers. The unqualified staff may be paralegals working supervised in a department. So long as the paralegals are properly supervised in accordance with solicitors’ regulatory requirements, the advice will be the advice of the firm or the legal department rather than the advice of the paralegals themselves and thus will be privileged.’

The case illustrates that the level of supervision and the regulatory and professional organisation of those offering the packaged services is key.

Operative date

• Now

Recommendation

• Clients considering using an HR support service provided by a law firm should check whether communications between them and the advisors providing the service are protected by legal advice privilege, or risk them being disclosed in legal disputes.

Case ref: Lingard v Leading Learners ET/2401985/17