Maintaining legal professional privilege as a Commonwealth Government lawyer

Legal professional privilege is the shorthand description for the doctrine that allows a client to resist disclosure of certain communications made by a client’s lawyers in the exercise of that lawyer’s services to that client.

Government lawyers will be familiar with the elements required to make out a claim of privilege. Generally, it must be demonstrated that:

• a communication occurred; 
• the communication is and was confidential; and
• the communication was made for the “dominant purpose” of the client obtaining legal advice, or for use in existing or anticipated legal proceedings.

Independent legal adviser

In practice, making out a claim of legal professional privilege will generally require that the communication has passed between the legal adviser and client. The intentions of the parties to the communication (objectively ascertained) will inform the assessment of whether the legal-adviser-and-client relationship exists.

To be a ‘legal adviser’ in relation to a client, the adviser must be giving advice ‘in their capacity’ as a professional legal adviser, and must be acting competently and independently. This level of independence has been described as an observance of “professional detachment”, “objective impartiality”, or an “absence of fear or favour”.  

Government lawyers, who are generally employees of their client, can claim privilege on behalf of their employer. However, government lawyers are at risk of failing to demonstrate the elements of the claim where the requisite level of independence from their employer organisation has not been maintained. It is, therefore, important that as government lawyers, independence can be demonstrated and that the role being performed is a legal role (appropriately supervised) and not a policy or commercial role. 

Sharing of privileged information

If privilege can be established, a common issue for government lawyers is exactly when and how privileged information can be shared safely within a department, within broader government agencies and externally with third parties without the loss of that privilege.

Lawyers within federal government agencies can share legal advice between departments without waiving privilege. The Legal Services Directions 2017 and section 55ZH of the Judiciary Act 1903, when read together, provide that disclosing privileged material to another department does not amount to disclosure to a ‘third party’ and therefore, no question of waiver arises.

However, this does not mean that in sharing this material, you can disregard the requirements for maintaining legal professional privilege. Best practice here could include:

• ensuring the receiving department is aware of the confidential nature of the material; and
• requiring the receiving department’s confirmation that the material will be treated confidentially and that the receiving department will not share the advice elsewhere without consent.

In contrast, the above provisions do not apply when legal advice is shared with government business enterprises (GBEs) or other third parties. In this case, it will be necessary to demonstrate how privilege has been maintained. This may require, for example, demonstrating that:

• there is a “common interest” in the material being shared with the third party;
• the material it is being shared for the dominant purpose of obtaining legal advice; or
• the material is being shared for use in existing and anticipated litigation.

When and how privileged material can be shared with such third parties, without loss of privilege, requires careful assessment at each instance.

Practical tips

Whilst the ultimate assessment of whether privilege has been established and maintained will be determined on a document-by-document basis if it is ever challenged, there are some steps that government lawyers can take to express the intention that:

• the material is privileged; and
• when providing and sharing the material that there was no intention that privilege would be waived. 

Remember:

• 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.
• no forwarding of advice without permission: Require permission for the circulation of the material so it is not distributed too widely.
• 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”.

Authors: Joanne Jary & Jean Lukin

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Joanne Jary

Jean Lukin

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