To what do I owe the privilege – broadening the scope of legal professional privilege

A recent decision of the Victorian Supreme Court has clarified the application of legal professional privilege and suggests that legal professional privilege may apply to protect even widespread internal disclosure of legal advice within an organisation.

Background

Legal professional privilege (LPP) is a legal principle which may be invoked to prevent access to communications between a lawyer and client. It is intended to ensure clients can communicate openly with their lawyers without fear that the information will later be disclosed. This principle has largely been codified in legislation, and also applies under common law.

The law in Australia recognises two types of LPP, being:

• communications between a lawyer and a client made for the purpose of obtaining or communicating confidential legal advice
  (legal advice privilege); and
• confidential communications between a lawyer and a client for the purpose of actual or anticipated litigation
  (litigation privilege).

LPP is not limited to giving evidence in or in connection with legal proceedings but can be invoked to resist giving information or producing documents in investigatory procedures. Generally speaking, the communication of the legal advice must remain confidential to maintain a claim for LPP. This requirement has resulted in courts finding LPP to be waived where it has deemed a party to have acted in a manner inconsistent with the maintenance of privilege, such as by revealing the contents of correspondence claimed to be privileged to third parties.

The decision

The recent Victorian Supreme Court decision[1] considered circumstances arising from the publication of an article in the Australian Financial Review which suggested that a group of trade unions would be mounting a legal challenge against the National Executive Committee (NEC) of the Australian Labour Party in respect of the manner in which pre-selections for some Victorian seats in the House of Representatives was conducted.

Following the publication of the article, Mr Erickson (the secretary of the NEC) retained Mr Lang (a barrister) in anticipation of the foreshadowed legal proceedings by the unions. The proceedings were commenced as contemplated in the article and a dispute arose in respect of whether certain parts of documents disclosed in those proceedings were subject to LPP.

The documents concerned were the redacted parts of three text message chains (the Documents).

The applicant, a representative of one of the trade unions, sought access to the Documents on the basis that the Documents were not privileged.

The first text message consisted of a conversation of three text messages between Senator Tim Ayres acting as Mr Erickson’s agent and Richard Marles MP, Deputy Leader of the Federal Parliamentary in respect of obtaining legal advice from the barrister, Mr Lang. The applicant argued that the text message was not privileged as the conversation did not record communications between a client and a lawyer, but rather related to the procurement of such legal advice

The other two text message chains largely consisted of discussion within the NEC of the legal advice provided by Mr Lang and the possible procurement of further legal advice.

The Court found all three of the Documents were covered by legal advice privilege. Even though the Documents did not contain correspondence directly between Mr Lang and the client (being Mr Erickson), the Court found that the disclosure of the Documents would in effect, disclose the content of the legal advice provided (or to be provided) by Mr Lang.

Further, the Court did not consider that the disclosure of the advice to other members of the NEC constituted a waiver of LPP. Rather, the findings of the Court suggested that so long as the disclosure was made confidentially and in a manner consistent with the way the organisation ordinarily makes internal disclosure in relation to legal advice, then the organisation has not acted in a manner inconsistent with the maintenance of privilege and privilege should be maintained.

Takeaways

Subject to contrary judicial treatment or an appeal of this decision, businesses can take a degree of confidence from this decision that internal communications (including communications through platforms such as WhatsApp) may be privileged if they involve substantive discussions on legal advice or obtaining legal advice. In any event, we recommend businesses implement the following strategies in order to reduce the risk of a finding that privileged has been waived:

• implement clear policies which address how and to whom legal advice is distributed in a manner which upholds confidentiality;
• ensure that legal and non-legal duties carried out by lawyers are clearly marked and made identifiable (e.g., denoting documents, including emails, with legal advice with a heading such as ‘confidential and privileged’)
• where possible, implement a management structure where lawyers are supervised by other lawyers, (as opposed to non-lawyers);
• ensure that lawyers are clearly identified by their job title; and

ensure that in-house counsel maintain a practising certificate and be provided with opportunities for continuing legal education.

[1] Asmar & Ors v Albanese & Ors (No 2) [2021] VSC 324.

Author: Lachlan Chuong

Title: Associate

Practice: Disputes

This article provides general comments only. It does not purport to be legal advice. Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.