Lawyer-client communications that satisfy the relevant requirements, whether original or copies, are protected by privilege. This protection applies regardless of whether the originals and/or copies are in the lawyer’s or the client’s possession. The protection can, however, be lost if the communications are sent to an external third party, including for consideration and/or comment beyond the scope of litigation and legal advice privilege.

Legal professional privilege extends to protect communications between in-house lawyers and corporate clients (i.e., their employer). However, the claim for privilege will be subject to particular scrutiny. Communications with in-house lawyers must be made to or by in-house lawyers in their capacity as lawyers, as opposed to another capacity (for example, of an executive nature). Moreover, the communications must relate to legal matters, as distinct from administrative or business matters. There is no single test that will enable all situations to be classified as falling on one side of the line or the other. However, there are two helpful benchmarks:

• Whether the in-house lawyer’s communications involve the use of skills for which an external lawyer could claim privilege
• Whether an external lawyer could be engaged on the matter on which the in-house lawyer was instructed by their client employer

If the answer is yes in either case, the communications are likely to be privileged. If not, they are unlikely to be privileged.

Legal advice privilege extends to all communications created for the dominant purpose of advising a client, and during the continuum of communication between the lawyer and client. Privilege will extend to internal communications between in-house lawyers so long as the internal communications are for the dominant purpose of advising their corporate client (i.e., their employer) and are between in-house lawyers acting in their capacity as lawyers as opposed to any other capacity (such as those that are administrative or executive in nature).

In Citic Pacific Limited v. Secretary for Justice & Another [2015] 4 HKLRD 20, it was held that legal advice privilege is subject to the dominant purpose test of obtaining legal advice. Despite the wider scope of legal advice privilege, it remains good practice to identify who needs to be part of the communication group so as to avoid any waiver of privilege.

Foreign lawyers practicing in Hong Kong are recognized as lawyers for the purposes of legal professional privilege, but the protection afforded by the privilege only applies in proceedings brought in Hong Kong.

The Hong Kong Court of Appeal in Super Worth Int’l Ltd & Others v. Commissioner of the ICAC & Another [2016] 1 HKLRD 281 followed the UK Supreme Court decision in R (on the application of Prudential plc and another) v. Special Commissioner of Income Tax and another [2013] UKSC 1 and held that legal professional privilege does not extend to advice given by professionals other than lawyers, even where that advice was legal advice that the professional was qualified to give.