It’s been a privilege: The dos and don’ts of legal professional privilege

September 12, 2019

What is ‘legal professional privilege’?

When you last corresponded with your lawyer, did you notice that their emails or letters are often headed with the words “subject to legal privilege”, or similar? Ever wondered what it meant, or what burden it put on you to ensure the contents stayed privileged?

Legal professional privilege, also known as client legal privilege, is a mechanism designed to protect certain communications from disclosure so as to encourage the free exchange of communication between a client and their lawyer.

When a document is protected by legal professional privilege, the document can’t be obtained or viewed by any other person, even if you, your business or your lawyer is the subject of a subpoena. Without privilege, you would have to hand the document over even if it was to your detriment: for example, a report confirming that you had underpaid your staff or engaged in discrimination.

To attract privilege, a communication must be between a client and their lawyer (and third parties in some limited circumstances), be confidential, and be made either for the dominant purpose of obtaining or providing legal advice, or for use in anticipated or existing legal proceedings.

What is a waiver of privilege?

Regardless of whether communications are expressly marked as privileged, they may still attract privilege based on their nature. Lawyers will often include a notation as to privilege, to make it clear that a communication is intended to be privileged.

But leave that to the lawyers.

Your obligation, as client and owner of the privilege, is to make sure you don’t do anything to break that privilege. Most commonly, privilege is unintentionally broken through what’s known as a waiver.

If you do accidentally waive privilege, the communication may be lawfully obtained by other persons or entities.

Waiver can come about by various means: by express statement or action, or by acting inconsistently with the intention to maintain confidentiality by providing the document to a third party.

What can you do?

It’s important that you share privileged documents with as few people as possible, and limit recipients to those who need to access the communication for the purpose of responding to or acting on the legal advice or litigation.

Where the privileged communication needs to be shared beyond the person who has received it from, or sent it to, the lawyer (for example, with the board of your organisation for a decision to be made), it should be clearly stated that it is a privileged document and must be kept confidential.

It’s also vital that no one with access to the privileged document communicates the contents to a third party or in another document/communication, as this may also waive privilege over the privileged communication even if you don’t share the original document! This is sometimes called ‘derivative waiver’. This could include summarising the content of the document, such as in the minutes of a board meeting, or in an update to another manager or an external accountant which confirms or reveals advice given by a lawyer in a previous privileged communication.

Where the contents of privileged communications are discussed in any meeting, you should make sure the minutes refer to no more than a “discussion regarding legal advice” and provide more detail in a separate appendix marked as privileged. This individual appendix is easily identifiable as being created for the ‘dominant purpose’ of legal advice/anticipated litigation (strengthening the claim of privilege), and it reduces the need for the document to be shared with other people as you can communicate the remainder of the minutes without inclusion of the appendix where appropriate.

Classic fails: when privilege is waived

A few examples of where privilege was inadvertently waived by clients include:

• A statement made to the Australian Securities Exchange which contained the words “The Board’s lawyers have been instructed to vigorously defend the claim and have advised that the plaintiffs’ claim will not succeed.”
• The provision of a workplace investigation report to the respondent to the allegations
• Correspondence which commenced with the words “as set out in my previous letter”, where the first letter had attracted privilege and the second did not
• A statement to the court that the business had “acted in accordance with the legal advice we received”

To keep your commercial secrets safe, it’s important to maintain legal privilege wherever possible. Think carefully next time you consider disclosing or summarising a document that was once (or currently is) in the hands of your lawyer.

Could you be waiving privilege?

For more information on legal professional privilege, please contact Matthew Robinson on 02 9922 5188 or mnr@fcbgroup.com.au