By Vera Visevic, Partner

Legal Professional Privilege is a fundamental touchstone of Australia’s legal system.

Privilege entitles a party to withhold documents and/or deny access to them on the basis that the documents contain confidential legal communications between a lawyer and client. It is a valuable protection.

Privilege exists and arises at both common law and in statue pursuant to the Evidence Act 1995 (NSW) (the Act). Privilege at common law is known as “legal professional privilege” (LPP) and as “client legal privilege” (CLP) pursuant to the Act.  The common law of privilege is now largely absorbed by and reflected in the Act however the concept of CLP is not identical to common law LPP.

Privilege extends to all types of communications which includes records of oral communications and hard copy or electronic communications. This means that privilege extends to cover both the content and records of face-to-face discussions, letters, emails, faxes, photographs, taped telephone calls, electronic diary entries and voicemails. It also includes evidence of such communications, for example files notes of phone calls or discussions.

In order for a communication to be privileged, the following elements must be satisfied:

• the communication must be confidential; and
• the communication must have been created for the dominant purpose of legal advice or providing legal services in respect of anticipated or existing litigation; and
• the communication must be with a lawyer.

Confidentiality is satisfied if at the time of making/preparing the communication there was “an express or implied obligation not to disclose the contents” of the communication irrespective of whether that obligation arose at law. Once a communication ceases to be confidential it is no longer privileged however just because a document is confidential does not necessarily mean it is also privileged.

For the communication to be privileged it must be for the dominant purpose of providing advice or giving instructions. The dominant purpose test will be a question of fact in each case. Communications between a client and lawyer (or a communication/document prepared by the same or a third party) must have been made for the dominant purpose of the lawyer providing the client with legal advice. In respect of “legal advice” the advice must not be confined to telling the client the law but it must include advice as to what should prudently and sensibly be done in the relevant legal context.

In order for advice to be “legal advice”, a lawyer must have conveyed it acting in their role as a lawyer. Communication with a lawyer can include communication with an in-house lawyer however the in-house lawyer must be sufficiently independent of the employer such that the in-house lawyer’s personal loyalties, duties or interests do not influence the advice given.

Where a communication has “lost privilege” a party may only see that particular communication that has “lost the privilege” however in the case where privilege is waived this may extend beyond the particular communication.

Privilege can only be waived by the client. However lawyers can, in error, waive their client’s privilege. Waiver is an intentional act done with knowledge whereby a person abandons the privilege by acting in a manner inconsistent with it.

Waiver can occur:

1. expressly;
2. by agreement;
3. when the communication ceases to be confidential (for example if the privileged communications are provided to another party, reading out a privileged communication in open court or when the communication is disclosed to a third party without imposing an obligation to maintain confidence);
4. by conduct;
5. by accidental disclosure in some circumstances.

Importantly, disclosure of the gist or conclusion of legal advice will amount to waiver of the whole communication and possibly related communications.

Tips to maintain privilege

1. Protect confidentiality: avoid disseminating legal advice or summaries of legal advice widely within your organisation. Forwarding emails that contain legal advice can result in the waiver of privilege. Further, avoid lengthy email chains.
2. Do not disclose the substance, gist or conclusion of legal advice.
3. Educate staff in relation to privilege and potential risks of document creation and dissemination.
4. If the information is legal advice or a communication to be sent to your lawyer mark the communication as “Privileged and confidential for the purpose of legal advice”.
5. Ascertain the purpose of the communication and why the communication is being created. If the communication is to contain both legal advice and non-legal advice, separate the document so the legal advice stands as an independent document from the non-legal advice.
6. Take care when creating reports, internal minutes and file notes. Avoid referring to legal advice in such documents.
7. If you are in-house counsel for your organisation and you are giving legal advice, ensure that you are acting as a lawyer, that is, ensure you are bringing an independent mind to the legal issue. Also ensure you maintain a current practising certificate.
8. Have a document management policy which deals with how privileged communications are managed and stored.