In-house counsel: a position of privilege?

An important issue for all in-house legal practitioners is maintaining the privilege in legal advice they provide as legal counsel to their employer company.  The extent to which in-house counsel are protected by the doctrine of legal professional privilege has recently been the subject of a great deal of judicial consideration.

The case of Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 raised the requirement of ‘independence’ of in-house counsel in establishing a claim for legal professional privilege.  The case also dealt with the issue of whether legal professional privilege may attach to the advice given by in-house counsel who are not fully accredited Australian legal practitioners.

Waiving goodbye to privilege

In the second post of our legal professional privilege series, we examine instances when such a privilege may be lost by waiver.  Waiver of legal professional privilege may be express or implied and, as stated by Justice Kirby in Goldberg v Ng (1994) 33 NSWLR 639, ‘It is simple to destroy the privilege’. 

Broadly speaking, waiver of privilege occurs when the party entitled to claim the privilege performs an act which is inconsistent with the maintenance of such privilege.  It is the client alone who may waive legal professional privilege.  The doctrine of waiver is fairly settled in Australian law however ambiguity can arise when an attempt is made to accurately categorise whether a waiver of legal professional privilege is express or implied. 

Give me that document! An overview of legal professional privilege

All information that a lawyer receives from a client is considered to be ‘confidential’.  Some of that information is also considered ‘privileged’.  Legal professional privilege is an important area of the law and one that frequently surfaces in practice.  Over the coming weeks, we will take a closer look at the doctrine of legal professional privilege.

Legal professional privilege covers confidential communications between the lawyer and the client made for the dominant purpose of advice or for use in anticipated or existing litigation.  For documents, the privilege only exists in circumstances where they are brought into existence for the dominant purpose of giving advice or for litigation.  For example the privilege does not encompass documents that are used to evidence transactions, but does extend to material gathered by the lawyer or client in preparation for litigation, even if that material does not constitute ‘communication’ in the strict sense.  The only body that has power to inspect documents for which legal professional privilege is claimed is a court, unless legislation expressly and unambiguously provides otherwise.