Legal Professional Privilege: Don’t waive goodbye to council's confidentiality

Legal professional privilege (Privilege) is a rule of law protecting the confidentiality of communications between clients and their lawyers. Clients can inadvertently waive these protections. It is critical that clients understand how to conduct business so as to retain these protections.

Why do we have Privilege?

Privilege protects trust and candour in the lawyer-client relationship. It encourages a client to make full and frank disclosure such that their lawyer can provide fully-informed advice.

What is Privilege?

Privilege attaches to confidential communications made between a lawyer and client that are for the dominant purpose of providing or receiving legal advice or assistance, or are related to existing or reasonably contemplated legal proceedings.

‘Communications’ includes not only discussions, but may also include file notes or minutes recording lawyer-client communications; documents prepared but not yet communicated; or communications between the lawyer and other legal advisers of the client. It is the client, not the lawyer, who ’owns’ the Privilege.

When communications are Privileged, it means that another party cannot compel their disclosure, generally even where disclosure would otherwise be required at law. For example, during a disclosure process in legal proceedings, or in response to a request received under the Freedom of Information Act 1991 (FOI Act).

How can Privilege be lost?

A client will waive Privilege if the client voluntarily acts inconsistently with the maintenance of confidentiality around the Privileged communication, even if this was not intended. This may happen if the substance of the Privileged communication is disclosed by the client to a third party. Referring simply to the fact that the client has received legal advice will ordinarily not waive Privilege, but drawing on the substance of that legal advice may.

We have sometimes seen council officers refer to the substance of a council’s legal advice to explain the council’s action in a particular instance or to bolster the council’s own position in its dealings with another party. We have also seen council officers forward the council’s legal advice to a third party, or council officers declare that council has received legal advice ‘that X is the case.’ Depending upon the circumstances of the particular case, these examples may all result in a waiver of Privilege.

Once a client’s actions are inconsistent with maintaining confidentiality in the communication, the law considers it unfair to maintain Privilege. Thus, the previously protected communication is liable to disclosure to third parties.

How can council officers maintain Privilege?

Council officers should always refrain from referring to the substance of legal advice received by council, either directly or indirectly, verbally or in writing. It would be wise to also ensure that the mere fact that legal advice has been received is not mentioned to third parties, as this removes the possibility to then go on to disclose that legal advice. Given the significant ramifications of waiving Privilege, it is important that council officers consult with council’s lawyers before engaging in conduct that may prejudice their Privilege and, if in doubt, check first with council’s lawyers. Our retainer council clients are reminded to use their retainers for this purpose.