United States: The Law Society: Restoring Balance In Criminal Investigations?

Last Updated: June 6 2017
Article by Michael Roach

On 12 May 2017, the Law Society President Robert Bourns wrote to the editor of the Financial Times describing the recent High Court decision in The Serious Fraud Office v Eurasian Natural Resources Corporation1 as "deeply alarming".2 Bourns observes that the judgement appeared to "narrow the scope of legal professional privilege".3 In recent months, the Law Society has been very active in addressing the apparent erosion of important protections in criminal investigations, both in its guidance on legal professional privilege ("LPP") and in its more recent guidance on the conduct of section 2 interviews.

Practice Note on Legal Professional Privilege

On 23 February 2017, the Law Society issued a practice note offering guidance to solicitors in respect of LPP (see Law Society: Practice Note: Legal Professional Privilege (the "LPP Note")). The LPP Note was developed in consultation with the Law Society's LPP working group of expert practitioners as a response to what it describes as "growing attempts by some parts of government to encroach upon the sacrosanct nature of LPP".4

We discussed the LPP Note in a previous Wilmer W.I.R.E. post, so it is not discussed in detail in this article. However, it was a timely reminder to solicitors that LPP is a fundamental right and that clients should be advised of when they are entitled to assert LPP.

Practice Note on Representing Clients at Section 2 Interviews

More recently, on 4 May 2017, the Law Society issued a practice note on a solicitor's role when representing clients at compelled interviews under section 2 of the Criminal Justice Act 1987 (see Law Society: Practice Note: Representing Clients at Section 2 CJA Interviews (the "S.2 Note")).

The S.2 Note followed Operational Guidance published by the Serious Fraud Office ("SFO") in June 2016, which sought to severely limit the role of lawyers when representing clients at s.2 interviews.

The guidance sets out a series of conditions that the defence lawyer must abide by in order to participate in the s.2 interview process. First, the lawyer's firm must give a number of undertakings significantly restricting the use of information that the SFO discloses during the s.2 interview process. Second, the lawyer must undertake to abide by certain "ground rules" and "parameters" during the interview itself, including that the lawyer will "not do anything to undermine the free flow of information which the interviewee, by law, is required to give".5

The S.2 Note once again reminds solicitors of their professional obligations and notes that "the SFO's guidance does not override"6 those obligations.

The S.2 Note is split into three sections:

1. Conditions under which a lawyer will be permitted to attend an SFO interview

The S.2 Note reminds solicitors that, in considering whether they can agree to act within the "parameters" set by the SFO, they must bear in mind their duty to act in good faith and act in the best interests of their client. This may include ensuring that their client has an adequate opportunity to answer questions; that any questions asked are clear, fair and adhere to the s.2 notice; and that their client's answers are not misconstrued. It also reminds solicitors that the areas that they may advise on in a section 2 interview might not be foreseeable and that, if the solicitor is excluded by the SFO in circumstances where they feel they have legitimately intervened during questioning, the solicitor should ensure that they have time to consult their client in private before leaving, in order to advise on the circumstances under which it would be proper not to answer questions. There is also an important reminder to the SFO that, whilst they can compel someone to answer questions, they cannot compel that person to be cooperative or helpful.

2. Undertakings sought by the SFO

The S.2 Note provides a number of practical points that solicitors should consider before agreeing to any undertakings requested by the SFO. This includes carefully considering the implications of agreeing to any undertaking and, where necessary, seeking to amend the terms of an undertaking before agreeing to it. The S.2 Note goes on to provide some of the key points to consider before agreeing to any of the standard undertakings sought by the SFO. This is a welcome acknowledgement of the issues that the required undertakings, taken at face value, raise in terms of lawyers complying with their professional obligations to clients. Those representing the subjects of section 2 Notices should have the Law Society's guidance firmly in mind when presented with draft undertakings, as it is likely that in practice there will be considerable scope for negotiating their terms.

3. Conflicts of Interest

This section of the S.2 Note reminds solicitors that it is for them to determine in each case whether or not there is a conflict or a substantial risk of conflict and refers its readers to the relevant Chapters of the SRA's Code of Conduct.

Unprecedented Action

In writing to the Financial Times and issuing the LPP Note and S.2 Note the Law Society's actions are unprecedented. This may be attributable to a change in policy at the Law Society but, more likely, is a response to a concerning trend of hitherto accepted principles being eroded. In formally reminding solicitors of their professional obligations in the context of section 2 interviews, the Law Society has provided a welcome tool for resisting attempts by the SFO to deprive compelled witnesses of protections. It remains to be seen how far the Law Society will go in the defence of privilege. Mr Bourns' letter to the Financial Times concludes by noting that "The Law Society has vigorously opposed other recent attempts to undermine legal privilege — always supposedly for some "greater good". We will be studying this decision closely with the same view."7 We wait to see if the Law Society will intervene in any appeal of the ENRC judgment. Either way, it is encouraging to see the Law Society voicing opposition where it matters and it is to be hoped that the trend will continue.


1 The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] WLR(D) 317

2 The text of the letter to the Financial Times can be found on the Law Society's website here: http://www.lawsociety.org.uk/news/letters/legal-professional-privilege-and-sfo-criminal-investigation/

3 http://www.lawsociety.org.uk/news/letters/legal-professional-privilege-and-sfo-criminal-investigation/

4 https://www.lawsociety.org.uk/support-services/advice/practice-notes/legal-professional-privilege/

5 https://www.lawsociety.org.uk/support-services/advice/practice-notes/representing-clients-at-section-2-cja-interviews/

6 https://www.lawsociety.org.uk/support-services/advice/practice-notes/representing-clients-at-section-2-cja-interviews/

7 http://www.lawsociety.org.uk/news/letters/legal-professional-privilege-and-sfo-criminal-investigation/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.