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Maintaining legal professional privilege as a Commonwealth Government lawyer


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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”.

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.

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