Legal privilege a “unique status” for lawyers’ clients

Legal professional privilege (LPP) is a “unique status” for lawyers’ clients,
formed over centuries in connection with the administration of justice, the
Court of Appeal heard yesterday.

Sir Sydney Kentridge QC, representing the legal profession argued against
extending LPP beyond lawyers in the Prudential case, during closing arguments
The insurer is appealing a decision which found HM Revenue & Customs could
seize advice received from accountants.

Sir Sydney said privilege for the legal profession was “not adjunct” to the
legal system, but part of it.

“The power to discipline the legal profession was a power of the judges.
They’re officers of the court. That’s what makes it different,” said Sir Sydney.

He said accountants’ duty of confidentiality to clients was not as strict as
lawyers, citing the ICAEW’s rules of disclosure.

He also suggested extending the scope of LPP would make it difficult to know
where the line ends. He said other regulated and certified professionals, such
as architects, might also believe they also have a right to LPP.

“Are you in a position to go through that exercise?” he said.

Sir Sydney also said extending LPP to tax advisers could impact on tax
revenues, the effect of which would be unquantifiable.

While other jurisdictions had allowed LPP for accountants, it was restricted
and not allowed for tax advice.

Prudential representative, Lord Pannick QC, said LPP has been extended to
foreign lawyers, and there was no justification to distinguish between them and
tax accountants.

He conceded that extending LPP to tax accountants could potentially open the
door to other professions, but added: “[I’m] not submitting it’s easy, but not
impossible. I’m saying accountants can meet the tough criteria”.

LPP, he contended, was a principle to enable clients to be able to seek and
obtain advice skilled in jurisprudence.

“We say LPP should be as extensive as the rationale behind LPP demands,”
said Lord Pannick.

The judges’ decisions on the case are expected after the summer.

Further reading:

distinction between accountants or solicitors on tax advice

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