Legal professional privilege issues for Queensland government lawyers – tricks and tips
By way of a quick recap, the principle, as stated by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, is as follows:
"Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court"
As such, it protects against the disclosure of confidential communications which were made for the dominant purpose of either:
- a client obtaining legal advice; or
- use in existing or anticipated legal proceedings.
The client is entitled to refuse to disclose documents containing privileged communications to other parties in litigation or to others, such as regulators who may be conducting investigations (unless the privilege is expressly abrogated by legislation or is lost for some other reason, such as a waiver).
Some key points can be made:
- firstly, the rationale is to allow clients to make full and frank disclosure of information to their lawyers to help ensure they receive fully-informed legal advice so that litigation can be properly fought
- secondly, given this underlying rationale, confidentiality is considered the most essential element of privilege. As a general rule, a failure to maintain confidentiality in legal advice or privileged material will give rise to loss of the privilege
- thirdly, another important aspect is that the communication must be between a client and their lawyer, which includes lawyers working in-house within government. The in-house lawyer must have a current practising certificate, and only communications involving the lawyer acting in that capacity are protected, not communications involving the lawyer involved in some other role (such as a commercial role). For example, the Federal Court recently heard an application brought by the Australian Taxation Office (ATO) against accounting giant, PWC, and its client, JBS, seeking to challenge a claim of legal professional privilege regarding confidential communications about its tax advice. The ATO's argument was that a PWC lawyer was only included in the communications to give a "cloak of privilege" to the work, not to provide legal advice
- fourthly, the privilege can be "waived", and therefore lost forever, if the client deals with the privileged communication, by way of some act, express or implied, which is inconsistent with maintaining confidentiality in the communication.
We previously shared some practical tips for maintaining privilege, but they are well worth repeating again:
- think about the purpose of the communication: Always keep in mind "what is the dominant purpose" of the communication – is it for legal advice, or contemplated or actual litigation? Consider identifying the purpose(s) of the material in an executive summary or equivalent
- mark the document: Make clear on the face of the document where you consider that the material is "Privileged and Confidential"
- treat the communication confidentially: Make sure those with whom you communicate know that the material is confidential
- do not forward advice without permission: Require permission for the circulation of the material so it is not distributed too widely
- state no intention to waive privilege: If you are sharing material, confirm in writing that there is no intention to waive privilege in the material when you provide it
- communicate with third parties via lawyers: If you need to engage a third party to assist with the provision of legal advice, communicate via a lawyer or at least copy a lawyer into the communication
- avoid paraphrasing or summarising advice: Paraphrasing and summarising risks losing the meaning of legal advice and no one will be aware that it is privileged
- separate out the advice: Clearly indicate within the material which parts or attachments are privileged
- keep it clean from commentary of non-lawyers: Try to avoid commentary from non-lawyers on the advice or the mixing of legal advice as this risks losing the privilege in the whole of the material
- avoid using "Reply All" and keep your emails tight: Keep in mind who needs to see legal advice and keep your emails limited to those who actually require access to that advice
- notes of discussion of legal advice: Be wary of taking handwritten notes in meetings that summarise or comment on legal advice. If you cannot avoid taking notes, mark the relevant sections of your notes as "privileged discussion of legal advice".
Taking these steps will assist you, and your colleagues, to ensure that legal professional privilege is properly established, identified and maintained in respect to legal communications.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.