In-house counsel may assume that any legal advice they give is covered by professional privilege, but is this always the case?
While it's clear that formal letters or emails of advice should be covered, what about notes made by a third party of discussions between the lawyer and the board?
This issue arose in the long-running Centro litigation. PWC had sought disclosure of various notes taken by the company secretary of discussions between the directors and in-house counsel. The court had originally held that such notes should not be disclosed but PWC appealed, arguing that it had not been demonstrated that legal professional privilege applied, particularly as no evidence was given by the actual people whose discussions were being recorded.
The Federal Court concluded that as long as the notes came into existence for the dominant purpose of seeking or obtaining legal advice and the advice given was legal (as opposed to commercial advice) and given by the in-house lawyer in his professional capacity as independent and objective advice, legal professional privilege would apply.
Furthermore, being satisfied by the evidence given by the person making the notes, the court considered that having to call each person whose discussion had been recorded in order to question them about what their dominant purpose was at the time would, frankly, be a waste of everyone's time (ok, they didn't quite use those words but you get the message).
It's good to see the court taking a robust and in our view, sensible approach here. Legal professional privilege is an important principle and whether or not it exists should be a question of substance, not form.
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