When is legal professional privilege waived?

Introduction

In a follow up to our recent article on Legal Professional Privilege, Caroline Callegari - Associate Principal and Head of Disputes & Litigation, looks at some common situations and circumstances where legal privilege is at risk of being waived.

The Court's approach

In Australia, the Court's first-step is to determine what was the intention of the privilege holder in acting the way that they did.

Again, what seems a straightforward consideration is anything but! The Court's determination will be based on the objective intention of the privilege holder, and not the subjective intention.

How can a wavier occur?

• Intentional acts - e.g. saying to someone 'my lawyer told me...'
• Unintentional acts - e.g. accidentally sending a privileged document to the other side in discovery and not immediately acting to reverse or remedy the error (which is why you should be checking the list of documents before you swear an affidavit of documents)
• Implied wavier - e.g. the Court determines whether a waiver is implied but usually occurs in the following situations:
  • Privilege over the whole document is waived where the substance, gist or conclusion is conveyed to someone not involved in the case.
  • Privilege can be waived where the privileged information was the catalyst for commencing legal proceedings or for making an accusation against another. This usually comes to pass in situations where the privileged advice affected your state of mind and as a result the Court could not understand the reason for legal proceedings without reference to the privileged document.
  • Privilege can also be waived unintentionally over associated matters that are relevant to the same issue or subject matter as a disclosed document. For example, if a privileged document was waived accidently during the process of discovery, then any other document which was used to create it or which referred to it and which may have been privileged could be accessible.

Only the holder of the privilege or someone authorised by them can waive privilege.

A waiver is usually not a risk under the following circumstances:

• When advice is shared within a company. However, discussions should be on a "need to know" basis.
• Acknowledging that you have received legal advice, and nothing more. Disclosing the substance of the advice will waive legal privilege.
• Expressing an opinion about a matter after having obtained legal advice, but not disclosing the substance or effect of the advice
• Where, by accident, letters of advice or other material was sent to the wrong person and you immediately takes steps to assert privilege and maintain confidentially, for example by contacting the receiver and asking for the material to be deleted or destroyed without being read.
• Where the material was produced under compulsion but under terms of confidentiality, and legal privilege was asserted at the time.
• Where one party shares the information with another party who has the same interest - known as Common Interest Privilege. This typically occurs where information is shared between different defendants in a proceeding and where the two lawyers speak with each other.
• Where the recipient must receive the document or information in confidential circumstances and subject to them agreeing to keep it confidential and have a common interest in the legal advice or litigation or anticipated litigation; in relation to which the document is shared.

What is meant by "Common Interest"?

There is no strict definition of " Common Interest" and the courts look to the particular circumstances of each case.

Situations where Common Interest might apply:

• Neighbours opposing a development in a residential area
• Insurer and insured
• Partners or JV partners (except where you are fighting with each other).

Limited waiver

A limited waiver occurs where a document is shared with a third party for a limited and specific purpose on terms that require confidentiality. This is usually where the expert is engaged to prepare a report in the proceedings or a party's accountant is asked to prepare summary documents for the purposes of legal advice.

Waiver Risks and how to protect the Privilege

• Using a shared email account or work account - we recommend not using a work email address for personal legal advice or one shared with another person. Create a separate private email account for your communications with your lawyer.
• Sharing your legal advice with a friend who is not involved in the proceeding - (be very careful who you talk to about the legal advice - you don't want it being the subject of gossip).
• Leaving documents containing privileged advice lying about - should be kept in a secure and private location such as a safe or a locked draw. We also recommend clearly marking any folders with "PRIVILEGED AND CONFIDENTAL".
• Creating a document for your lawyers but saving it in a shared drive where others have access. If you are creating a document specifically for your lawyers (or your agent is), ensure that the documents are marked " PRIVILEGED AND FOR THE PURPOSE OF OBTAINING LEGAL ADVICE".
• Providing your advisor (e.g. accountant ) with too much information about your legal advice - don't over share.
• Asking your adviser for information that might be used in legal proceedings without advising them that the information provided might be used in this way. You want your advisor to keep the information confidential and to know it's being created for legal advice or proceedings.
• For Employers - where legal advice sent to the office where the employee might have access to it or to an email address they might monitor.

If in doubt - ask your lawyer before you communicate. Once privilege is lost, you can't get it back.

How Sharrock Pitman Legal can assist

In Australia, legal privilege is fundamental to the process of justice and the integrity of legal proceedings.

If you are involved in legal proceedings either directly or as an expert witness, and would like advice on your obligations, please do not hesitate to contact our Disputes & Litigation team. Alternatively, please contact our office on 1300 205 506 or email sp@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only  and should not be relied upon up as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.