Australia: Hard to Get, Easy to Lose: Governments and Legal Professional Privilege

Governments at all levels and Government agencies frequently take legal advice either from their own in-house advisers or from external lawyers, assuming that legal professional privilege protects that advice from disclosure to litigants or those making an FOI request.

Legal professional privilege permits a person to resist the giving of information or the production of documents which would reveal confidential communications between clients and their lawyers made for the dominant purpose of giving or obtaining legal advice, or preparing for or prosecuting actual or anticipated legal proceedings.

If that privilege is waived (which is easily done) then the advice is not protected; worse, it might be that privilege never protected the advice in the first place. In this article we'll look at some lessons from recent cases on privilege, and what Governments and Government agencies can do to ensure their legal advice is protected from disclosure.

Some lawyers working for the Commonwealth Government have a limited statutory right to practise, meaning that they do not need a practising certificate, but must only be admitted to practise. Queensland and Western Australia have similar schemes. Some qualified lawyers working in-house elect not have a practising certificate because they (and their employers) think they will not be practising law in their corporate role, but over time become involved in giving advice. In the case of legal professional privilege, does it matter if lawyers do not have either a practising certificate or a statutory right to practise?

According to the ACT Supreme Court, it does. Justice Crispin in Vance v McCormack [2004] ACTSC 78 (2 September 2004) held that advice given by lawyers in what was then called the Defence Legal Office was not protected by legal professional privilege and hence the court could compel its release to a litigant.

The underlying rationale for legal professional privilege, as explained by Justice Crispin, is rooted in the relationship of legal practitioner and client. It is justified by the public interest in facilitating the representation of the clients. This rationale appears to presuppose that the practitioner concerned is entitled to practise. If practitioners have no actual right to practise, then there is no public interest being served and legal professional privilege does not protect their advice.

If this decision stands and is followed, then unless a Government or agency lawyer has a current practising certificate or a relevant statutory protection, any advice he or she gives may be discoverable (and disclosable) in litigation or in response to an FOI application.

Having said that, it's clear that the mere possession of a practising certificate will not in itself guarantee that privilege attaches to advice, a point also discussed by Justice Crispin in Vance (we understand that the Commonwealth is seeking leave to appeal this decision).

If the underlying rationale for legal professional privilege is rooted in the relationship of legal practitioner and client, then there must be a solicitor/client relationship. In practical terms, an employed legal adviser such as a Government lawyer must act with sufficient independence to support a solicitor/client relationship to give rise to privilege.

What independence will be "sufficient"? Relevant factors would include the employment structure and chain of command insofar as those factors may impinge upon the independence of employed lawyers, directions in fact given by superior officers (sometimes lawyers, and sometimes not), and attitudes and occurrences which could cast light on the true nature of the relationships in question.

For example, in the Vance case the factors which showed the military legal officers were not sufficiently independent included the fact that they could be ordered to act in a manner that would be quite contrary to prevailing standards of professional ethics, and that their superior officers were not lawyers and therefore did not fully understand lawyers’ ethical and professional standards or need to maintain their independent judgment. In addition, unlike civilian lawyers, they were not obliged to keep abreast of developments of ethical rules and there was no peer review of their ethical standards.

Assuming that the criteria above have been met, legal professional privilege ordinarily attaches to legal advice. The problem now is to ensure that there is no implied waiver of the privilege (which is usually done by accident).

How easy waiver can be is shown in Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 (25 August 2004), which looked at the extent to which voluntary disclosure of the conclusions of legal advice waives the privilege. In that case the Customs Service sent a letter to Mr Bennett in an attempt to settle legal proceedings between them. The letter said that the "Australian Government Solicitor has advised Customs that…", followed by AGS’ conclusions on the relevant law.

This was enough to waive the privilege that otherwise protected the legal advice from disclosure. The Full Federal Court explained that the issue was the inconsistency between the disclosure made by the client and the assertion of confidentiality. It did not matter that the Customs Service only set out the AGS' conclusions; it was deploying the substance or effect of its legal advice for forensic or commercial purposes, and that is inconsistent with maintaining the confidentiality of the advice.

Does this mean that your legal stance cannot be revealed? The court said that confidentiality can be maintained where a client mentions that legal advice has been taken but does not disclose the content of that advice. A client can also say something which is based on legal advice without waiving privilege, as long as there is no disclosure that advice has been given to that effect. If an advice contains multiple conclusions and only one is revealed, it is possible that the waiver applies only to that conclusion and not the others. This depends upon whether the conclusions and reasoning are discrete, or are so intertwined that they cannot be separated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.