ARTICLE
27 March 2024

Legal Professional Privilege and Confidence: Keep it secret! Keep it safe!

BP
Bennett & Philp Lawyers

Contributor

Bennett & Philp are lawyers who understand the real world. We offer practical legal solutions across every stage of life and business and with multi-disciplinary experts across five practice areas – Business Advisory, Intellectual Property, Disputes and Litigation, Property and Real Estate and Wills and Estates.
Documents or information will only be protected by privilege if they are also private and confidential.
Australia Privacy
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Legal professional privilege, like other forms of professional privilege (for example doctor-patient relationships) is a fundamental right in systems like ours. It is designed to ensure a person can communicate freely with their lawyer, in order to obtain full and effective advice, without the fear of things being said in confidence getting dragged into the light and used against them.

There are two concepts that go hand in hand in this protected relationship: 'privilege' and 'confidence'. Privilege refers to the protection one has from having to disclose information that is protected. Confidentiality, simply means information is secret or private.

Why this distinction is important is because people tend to conflate these issues. Documents or information will only be protected by privilege if they are also confidential. It does not work in reverse where a document that would ordinarily be protected by privilege (like a solicitor's letter of advice to a client) gets to be clawed back into the shadows of confidentiality, if it loses that key ingredient of privacy somewhere along the way.

Legal privilege works as a shield against people trying to get their hands on protected material, it does not give a person a right of attack if the material has been exposed to the world or others outside of that protected relationship. It is up to the person trying to assert the privilege to prove three key things:

(a) the communications must pass between the client and client's legal adviser;

(b) the communications must be made for the dominant purpose of enabling the giving or receipt of legal advice or for use in existing or anticipated litigation; and

(c)  the communications must be confidential at the time it occurred.

This issue is particularly relevant in situations of employment and within companies between directors.

Disputes will often arise between employees and their bosses or between directors of a company and often those disputes will turn into a search for legal advice about the dispute and again frequently, without understanding the issues, people will communicate with their lawyers using work emails thinking their communications are protected just by their very nature of being between lawyer and client. They are not!

A work email account will often be maintained on work hardware (computers, tablets, servers etc.). They are certainly almost always paid for by the company through the maintenance of domains or providing the hardware to staff. This means that any emails exchanged between a person and their lawyer, using a work email or hardware creates a copy of that information on a server that will be accessible by other people, namely IT consultants, ISP's and the employers themselves.

Communications shared with an opponent are not normally considered to be confidential.  This extends to statements made in presence of a third party, evidence given without objection, as well as documents made available to an opposing party without objection.

The question then becomes one of: can some one using a work email ever really be able to "object" to such disclosure. Several cases have looked at this very issue and have found there are certain circumstances where confidence can still be maintained, even when using work email accounts or hardware, but in order to maintain the "objection" and confidence, a person would need to ensure:

(a)  all such communications are clearly marked as "private and confidential";

(b)  any copies are maintained in a private, password protected folder or are otherwise not accessible by any other person;

(c) any employment, shareholders or directors agreements and company IT policies state that any private or confidential material created by the directors or employees remains their property.

But even these measures carry the risk of the information being copied and distributed more widely, and the greater the distribution the harder to argument can be of maintaining confidentiality.

It would also be exceedingly rare for an employer or fellow director to agree to a clause in their agreements that ownership of any documents created or stored on their systems does not automatically pass to the company.

This is usually just a practical issue because a company needs to be able to access any document on its system to ensure, safety from hacking or viruses, compliance with company standards or regulations or even just to ensure no illicit activity is going on in their systems.

Directors of companies also usually have the right to access any document on the company system so that compliance with any statutory or regulatory audits or investigations can be fully complied with.

The long and short of it is, trying to maintain confidentiality and therefore legal professional privilege in your communications should never occur on work or company email accounts and hardware. If you are looking for legal advice, use or create a private email account and avoid the risk.

Remember: Keep it secret! Keep it safe!

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.

ARTICLE
27 March 2024

Legal Professional Privilege and Confidence: Keep it secret! Keep it safe!

Australia Privacy

Contributor

Bennett & Philp are lawyers who understand the real world. We offer practical legal solutions across every stage of life and business and with multi-disciplinary experts across five practice areas – Business Advisory, Intellectual Property, Disputes and Litigation, Property and Real Estate and Wills and Estates.
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