In a recent “Legal Business” seminar conducted by the firm, Principal Paul McCowan presented to over 100 government and in-house lawyers upon the topic of legal professional privilege as it applies specifically to their unique areas of practice. More increasingly we are seeing a number of decided cases where challenges have been made to claims of legal professional privilege arising from legal advice by a government or in-house employed corporate lawyer to their employer.

Legal professional privilege is an important protection afforded to clients of lawyers against the disclosure of communications directed for the dominant purpose of seeking or obtaining legal advice or protecting the contents of documents (or communications) given for the dominant purpose of providing legal advice. The rationale is to promote openness and full disclosure by clients so as to promote the overall interests of justice. The lawyers then giving a client advice based on this principle have serious professional and legal obligations to advise the client and act appropriately on the disclosures and instructions obtained.

Commonly claims about legal professional privilege fall into two separate categories. Namely advice privilege, and litigation privilege. It is important to realise that such privilege claims are often recognised and upheld by the Courts. However there have been some apparent significantly well founded claims which fail. To avoid the risk of any claims failing the following pointers may be of assistance before a sensitive body of potentially privileged materials are brought into being.

Advice privilege

  1. The question involves the need for legal advice to be given and did not amount to communications purely upon factual matters or issues of commercial or operational concern;
  2. The advice to be given will come from a Lawyer who is appropriately independent from the organisation so as to able to give advice independently without fear or favour; (i.e. the lawyer is not a shareholder of the organisation or does not have an operational role in addition to a legal advisor role).

Pointers in favour of a claim – although not definitive in support of independence in this context include at least some or a number of the following features:

  • The legal advisor is admitted to practice as a legal practitioner;
  • The legal advisor has a current practicing certificate and is amenable to the applicable professional conduct regulation in the state or territory and branch of the profession in which he or she operates;
  • The legal advisor is employed in a capacity according to a position description or written contract which includes a duty to provide independent considered legal advice to the organisation;
  • The legal advisor does not have a shareholding or general bonus entitlement based on the commercial performance or outcomes of the organisation;
  • The advice was not vetted in draft form by any person in the organisation except for verification that the scope of the advice sought and the facts upon which it is based, are correctly stated. This does not apply to independent peer review by another independent lawyer either within or retained by the organisation to provide legal advice;
  • There has been no waiver of privilege. (i.e. the client has not wittingly divulged the otherwise privileged material earlier to a third party making the communication “public” knowledge).

Litigation privilege

  • The communication is to be confidential and passing between a legal advisor and client and made for the dominant purpose of the provision or obtaining of legal advice;
  • Ensure there is no statutory provision which defeats the privilege – e.g. UCPR in certain areas of expert reports, compulsion to produce e.g. Commission of Inquiry nor waiver operating nor improper purpose evident e.g. crime or fraud).