Privileged information

The client-lawyer relationship is protected in law.

What someone tells to their lawyer is protected by a privilege that the legal system and wider society recognise.

The Daily Record’s piece today on Craig Whyte and Rangers carries a quote from Paul Murray, an ex-director of the club

“HMRC asked for a meeting at the end of last week to find out what knowledge I, having been a director of the club at the time, had of these transactions prior to the takeover,” Murray said.

“I knew nothing about this and although I have been questioned by HMRC and seen some especially revealing documents which are in their possession, it is still very hard to take in what has been going on.

“Collyer Bristow were acting for Craig Whyte during the takeover and I have been shown their client account, from the opening of it until today.

“I’ve also seen all invoices from Ticketus to Rangers and Rangers to Ticketus supporting all these actions.”

What legal instrument would allow HMRC to see private legal papers held by a solicitor?

This information is protected by Legal Professional Privilege. HMRC cannot have been given this information unless either Craig Whyte or his company provided it voluntarily, or the fundamental Legal Professional Privilege was over-ridden by the circumstances of the case such that Collyer Bristow was obliged to provide it.

Would Mr Whyte have provided this information off his own bat to HMRC while he tries to keep his business afloat by allegedly withholding tax remittances? Possible, but unlikely. . Remember also that this is an investigation, and Mr Murray saw the document dated this week, not last year.

Solicitors’ obligations under Legal Professional Privilege can only be superseded by such serious means as the Terrorism Act 2000, or the Proceeds of Crime Act 2002, specifically sections 327 – 329, 330 and 332 relating to disclosure of confidential client information. The Law Society of England and Wales guidance is extensive in this area and presented in its professional practice note regarding Anti-Money Laundering of 6th October last year. The chapter regarding Legal Professional Privilege is at the following link:

Assuming that this is not a Terrorism Act issue, an implication would be that the Proceeds of Crime Act is at play, which covers various matters including Money Laundering and similar activities.  These rules empower the Serious Organised Crime Agency to obtain much of the information it needs to enforce the law.

The question for lawyers remains:

“Under what circumstances would you be required to disclose details of a Client’s Account to a public enforcement agency?”

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