Australia: Maintaining Legal Professional Privilege

"The rationale of legal professional privilege, according to the traditional doctrine, is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors, the law being a complex and complicated discipline …"

Stephen, Mason and Murphy J.
Grant -v- Downs (1976)
135 CLR 674

Topics for presentation

1. What (if any) in house communications can attract privilege from disclosure?

2. What steps need to be taken to ensure that communications attract privilege?

3. Whether In-House Counsel need to maintain Practising Certificates and if so, what CPD requirements must be met in order to renew them?

4. When will privilege be waived?

  • Legal professional privilege can essentially be divided into two types of privilege, namely:-

– The Advice Privilege; and

– The Litigation Privilege.

  • The Litigation Privilege

– Communications which are made, prepared or brought into existence for the dominant purpose of use in existing, intended or reasonably anticipated litigation.

  • The Advice Privilege

– Confidential communications between the In-House Counsel and their employer and/or its representatives, which are made in the In-House Counsel’s professional capacity as a legal advisor, about a professional matter, for the dominant purpose of obtaining legal advice.

  • The Dominant Purpose

– The test for what determines the "dominant purpose" of a communication is my no means clear, and has been interpreted differently by different courts.

– However, "dominant purpose" can be fairly summarised as whether the purpose of supplying the material to the legal advisor accounts for the existence of the material. Grant -v- Downs (1976) 135 CLR 674 at 692

– The dominant purpose is an objective test. The subjective intentions of the document’s creator, or the person who authorised its production, are not conclusive of its purpose.

– Dominant purpose is not synonymous with the substantive purpose. Where there are co-existent purposes of equal weight, it is unlikely that such a document will meet the dominant purpose test.

– The dominant purpose is assessed at the time the document is brought into existence, not necessarily at the time that it is commissioned.

  • Reasonably anticipated

– In order to attract litigation privilege, the litigation in question must be reasonably anticipated.

– Litigation must be, on the current formulation of the test, "threatened or highly probable" to be reasonably anticipated.
Galawy and Anor -v- Constable and Ors
[2001] QSC 180

  • Advice Privilege

– In order for the Advice Privilege to apply, a number of threshold criteria need to be met. Briefly, they are as follows:-

  • The lawyer must be consulted in their professional capacity as a legal advisor;
  • The matter must be about a professional matter;
  • The communication must be private (i.e. not broadly publicised);
  • The communication must arise as a result of the relationship of lawyer and client;
  • The lawyer must be admitted to practise; and
  • The lawyer must be independent.
  • Admission to Practise

– It is settled law in Queensland that the Advice Privilege is not applicable where the "lawyer" in question is not admitted to practise – Glengallan Investments Pty Ltd and Ors -v- Anderson and Ors [2001] QCA 115.

– Admission to practise is seen as both an indicator of competence and independence, as the lawyer is obliged to preserve professional standards and is liable to professional discipline for breaches of those standards – Waterford -v- The Commonwealth [1986] 163 CLR 45.

  • What Constitutes Admission to Practise?

– This test has been stated differently by different Courts. It has been taken to mean both admission on the roll of legal practitioners or, admission on the roll of legal practitioners and holding a current Practising Certificate or working under the supervision of someone who holds such a Certificate.

– The issue has been considered in Australian Hospital Care Pty Ltd and Anor -v- Duggan and Ors (No. 2) [1999] VSC 131, and more recently in Vance –v- Air Marshall McCormack in his capacity as the Chief of Air Force and Anor [2004] ACTSC 78.

– Section 24(1) of the Legal Profession Act 2004 (Qld) states:- "A person must not engage in legal practise in this jurisdiction unless the person is an Australian Legal Practitioner".

– An Australian Legal Practitioner is an Australian Lawyer who holds a current Local Practising Certificate or a current Interstate Practising Certificate.

– The maximum penalty for a breach of Section 24(1) of the Legal Profession Act is 300 penalty units ($22,500.00) or 2 years imprisonment. It is also capable of constituting Unsatisfactory Professional Conduct or Professional Misconduct

  • What constitutes independence is a question of fact.

– The issue of independence is a particularly difficult question to answer in the context of an employed or salaried In-House Counsel, and will vary on the basis of the circumstances of each case.

– Some Judges have questioned whether it is truly possible, in the context of a privately employed lawyer, given the duty of fidelity placed on employees, for the lawyer to be truly independent – Brennan J. in Waterford -v- The Commonwealth (1986) 163 CLR 154.

– Lawyers are officers of the court. The duties they owe to the court are paramount to those of clients. Therefore, it is prima facie the case that a lawyer will be presumed to have acted with sufficient independence.

– However, if issue is taken with that position, a Practising Certificate and membership of the Queensland Law Society will ostensibly assist in establishing independence.

  • Continuing Professional Development

– Rule 48 of the Queensland Law Society Admission Rules 2005 provides:-

  • In each CPD year in which the Legal Practitioner holds a Practising Certificate as a solicitor, the Legal Practitioner must, unless exempt in whole or in part, complete 10 CPD units.
  • At least once every 3 CPD years, a Legal Practitioner must complete 2 CPD units on the subject of legal ethics.
  • At least once every 3 CPD years, a Legal Practitioner must complete 2 CPD units on the subject of risk management.

– At least once every 3 CPD years, a Legal Practitioner must complete 2 CPD units on the subject of trust accounts

  • Rule 50 of the Queensland Law Society Admission Rules 2005 provides (in summary) the following exemptions:-

– Whether the Legal Practitioner has been in practice for a period exceeding 40 years and holds a Practising Certificate other than as a principal, or is a Notary Public whose sole reason for holding a Practising Certificate is to continue as a Notary Public.

– By reason of the Legal Practitioner’s geographical location, physical disability or any particular exigencies of the Practitioner’s practice, the Practitioner has experienced particular hardship or difficulty in complying with these rules;

– The Practitioner has been substantially absent for practise because of parenting leave, unemployment or illness;

– The CPD Committee considers that there are special circumstances warranting an exemption.

  • Waiver

– Legal Professional Privilege may be waived in one of two situations:-

  • Where a party discloses the substance of its advice and communications to an opposing party; and
  • In relation to documents which become relevant by reason of issues arising from legal proceedings in pleading of the cause of action or defence.
  • The leading authority on waiver of privilege is Mann -v- Carnell (1999) 2001 CLR 1.
  • The key points with respect to the outcome of this decision with respect to waiver are:-

– The inconsistency between the conduct of the client and the maintenance of the confidentiality which affects the waiver of privilege;

– The fairness of maintaining privilege; and

– Waiver may be expressed or implied.


© Hopgood Ganim

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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