When does a contractual retainer arise & when does legal advice privilege apply, asks David Burrows
At what point in a case can it be said that what a person has said to a lawyer—solicitor or barrister—is covered by the confidentiality of legal advice privilege (LAP). At what point is the lawyer’s insurer on risk? Are these two dates the same; and is this the date from which a lawyer’s retainer contract operates?
In these times of close regulation where a lawyer’s every move—or so it often seems—is capable of review by a regulatory body a surprising feature of outcomes focused regulation (the style of the new SRA Code of Conduct 2011 ) is that the Solicitors Regulation Authority seems not to know when its regulatory reign over a lawyer begins. The regulators have no barometer of which I am aware by which they can measure the critical moment at which lawyers are clearly within their regulatory clutches; nor does the SRA regard itself as having any arbitral role in defining this point. It seems to have no means of defining when its own
