Asmar v Albanese: extending the scope of legal professional privilege - Disclosure & Electronic Discovery & Privilege

In examining legal professional privilege (LPP), a tension has always existed between litigants' interest in the disclosure of all relevant documents in a dispute, and society's expectation that clients be allowed to talk openly with their lawyers without fear that their communications will be made public.

The recent decision of Asmar & Ors v Albanese & Ors (No 2) [2021] VSC 324 (Asmar v Albanese) suggests LPP may now apply to internal text messages between employees that include substantial discussions about legal advice that has been received or is being sought.

Background

On 30 April 2021, the Australian Financial Review published an article suggesting that a group of trade unions would take action against the National Executive Committee (NEC) of the Australian Labor Party (ALP). It was speculated that the proposed action would seek to restrain the NEC from conducting pre-selections for Victorian seats in the House of Representatives for the next federal election.

In response to the article, Paul Erickson (Secretary of the NEC) retained Tony Lang (a barrister). A collection of unions then instituted proceedings similar to those contemplated in the article against a number of defendants who are members of the NEC, including Anthony Albanese (the Leader of the Federal Parliamentary Labor Party).

A dispute arose about whether certain documents discovered by the defendants were subject to LPP.

The text messages

The defendants claimed LPP over redacted portions of a series of text messages, which were characterised as ‘Document 5', ‘Document 6' and ‘Document 7'. The plaintiffs disputed that the redacted portions of these text messages were privileged.

Document 5 specifically consisted of several confidential text messages coordinating the procurement of legal advice from Mr Lang, between Senator Tim Ayres acting as Secretary Erickson's agent and the Honourable Richard Marles MP, Deputy Leader of the Federal Parliamentary Labor Party.

Document 6 contained several confidential text messages between Secretary Erickson and Senator Ayres, discussing Mr Lang's legal advice and the procurement of further advice. This included disclosures to Senator Ayres about the substance of some advice, which were made to keep the Senator ‘in the loop'.

Document 7 was a series of confidential text messages where Secretary Erickson disclosed and discussed the legal advice with Ms Linda White, a member of the NEC.

Why were they all privileged?

The Court found that the redacted portions of Documents 5, 6 and 7 all attracted legal advice privilege under section 118 of the Evidence Act 2008 (Vic) (Victorian Evidence Act), which is a subcategory of LPP available both in statute and at common law. To attract legal advice privilege, a document does not have to be a communication between a lawyer and their client. Rather, the test for legal advice privilege is whether, if disclosed, would the document disclose communications between a lawyer and their client which were made for the dominant purpose of providing or obtaining legal advice? If so, the document or relevant portion of the document attracts legal advice privilege.

Applying this test, Associate Justice Matthews found that the redacted portions of the series of text messages comprising Documents 5, 6 and 7 all attracted legal advice privilege. Even though the conversations were not directly with the NEC's lawyer, the Court was prepared to extend legal advice privilege to communications discussing how instructions to counsel should be framed.

Importantly, the Court did not consider that disclosures of portions of the advice to members of the NEC waived privilege. Instead, the Court appeared to hold that if disclosures were made confidentially and consistently with the manner in which the organisation ordinarily makes internal disclosures about legal advice, then privilege could be maintained.

Key takeaways

The Court's application of the law on legal advice privilege in Asmar v Albanese has a number of interesting implications.

For example, the Court's reasoning suggests that the types of communications between non-legal employees and in-house counsel that attract privilege may be far wider than previously thought. Specifically, conversations between non-legal employees that include substantive discussions about legal advice on platforms such as WhatsApp may attract privilege.

Additionally, even widespread disclosure of legal advice within an organisation may not constitute a waiver of the privilege that attaches to the substance of the legal advice. This would appear to be the case where such disclosures are made confidentially to the recipients and in a manner consistent with the organisation's ordinary processes for internal disclosures of legal advice.

Australian businesses should therefore pay close attention to any appellate or subsequent judicial treatment of Asmar v Albanese. If the decision is received favourably, then on a practical level it may give organisations more confidence that internal communications are privileged if they involve substantive discussions on legal advice or obtaining legal advice.

Although Asmar v Albanese only considered the Victorian Evidence Act, the same communications that were the subject of the decision would also likely be privileged under the Evidence Act 1995 (Cth) at a federal level, and in states which have adopted the uniform evidence legislation. It is also likely that the same communications would be privileged at common law.

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.