Who Owns the Advice? Privilege in Shared Legal Services

Shared legal services can deliver resilience and savings, but they can also blur the line that privilege depends on: the relationship between a lawyer and a single client. When advice is commissioned by one council, scrutinised by a committee, shared with a wholly owned delivery company and copied to a partner body, the question of who may see it becomes a governance issue, not merely an administrative one. In 2026, as more public bodies pool legal capacity, the perimeter around legal advice needs to be designed, documented and tested.

Privilege belongs to the client, not the team

Legal advice privilege protects confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice. It belongs to the client. In a shared service, that means the relevant public body, not the individual officer who requested the note, the committee that received it or the legal team that produced it. A shared team acting for several bodies should therefore identify the instructing client at the outset of every matter. That identification should appear in the engagement record, the matter file and, where appropriate, the advice itself.

The point is not to create bureaucracy for its own sake. It is to prevent the most common failure: advice prepared for one body being treated as a general resource for the group. A lawyer who acts for several entities must be clear about whether they are advising one, several jointly or a separate entity. Where interests are aligned, a common interest arrangement may be appropriate; where they are not, separate advice and separate files are safer.

Circulation is where privilege is most often lost

Privilege is not destroyed by every onward share, but confidentiality is central to it. Circulation beyond those who need the advice for the purpose for which it was given increases the risk of waiver. The risk is greatest where advice is embedded in committee reports, board packs or operational instructions and then distributed through routine lists.

Shared teams should adopt a default: legal advice is shared on a need-to-know basis, not a need-to-copy basis. Committee reports should either summarise the legal position without reproducing the advice or clearly mark the privileged section and control its distribution. Board packs should not become the route by which advice travels across a group. Where an external partner or delivery company needs the advice, the team should ask whether the client has authorised the disclosure, whether a confidentiality agreement or common interest protocol is in place, and whether a redacted version would meet the operational need.

A practical perimeter for shared teams

The following controls are proportionate for most shared legal arrangements.

• Define the client in every engagement. Record the instructing body, the matter owner and the permitted recipients. For joint instructions, record the basis on which advice is shared.
• Mark advice consistently. Use a clear legend such as Privileged and Confidential – Legal Advice, with the date, author and intended recipient. Avoid marking factual updates or commercial commentary as privileged when they are not.
• Control distribution. Use matter-specific distribution lists rather than broad group addresses. Remove former officers, contractors and partner staff when their involvement ends.
• Separate files. Where a shared team acts for more than one body, keep separate matter files and avoid storing one client’s advice in another client’s repository.
• Use common interest protocols. Where bodies genuinely share an interest, record the basis for sharing and the limits. Do not assume that group membership creates a joint client.
• Manage board and committee papers. Agree a protocol with democratic services and governance teams on how privileged material is extracted, marked and retained.
• Retain the record. Keep the final advice, the instructions and the distribution record together. Retention should follow the client’s records policy and any litigation hold.
• Train the boundary roles. Officers who commission advice, committee clerks and communications teams should understand that forwarding a legal note can affect confidentiality.

Delivery companies and external partners

A wholly owned company is a separate legal person. Privilege does not flow automatically from the council to the company, or from the company to the council. If advice is to be shared, the team should establish whether the company is a client, whether a common interest applies, or whether disclosure is authorised and protected by confidentiality terms. The same discipline applies to contractors, insurers, auditors and partner authorities. Auditors may have statutory powers to require information, but routine copying is different from a lawful request. The team should not treat a request as a reason to distribute more widely than necessary.

Retention, offboarding and mistakes

Privilege is fragile at the edges of a shared service: personal mailboxes, legacy drives, WhatsApp groups and joint project sites. Teams should designate the official repository for advice, restrict download and forwarding where possible, and include legal material in offboarding checks. If advice is disclosed in error, the response should be prompt: contain the distribution, notify the client and seek legal advice on whether waiver has occurred and what remedies are available. An apology may be appropriate, but it should not be made before the legal position is understood.

Conclusion

Shared legal capacity is a sensible response to constrained budgets and complex governance. It works best when the privilege perimeter is explicit. The client should be named, the recipients should be controlled, the marking should be accurate and the retention should be deliberate. None of that need slow down decision-making. A short engagement protocol and a consistent marking habit can protect the advice while allowing committees and partners to receive the legal support they need. In 2026, the question is not whether shared teams can keep privilege intact, but whether they have designed the controls that make it likely.