The Importance of Maintaining Privilege and Tips and Tricks to Doing So

In brief:

Privilege is often something taken as a right, but understanding what it means, its importance and the circumstances under which it can be lost or waived in confidential communication is crucial.

Legal professional privilege is akin to confidentiality and can be used as a powerful tool to prevent disclosure of communications or documents that may be prejudicial for an institution to disclose.

Establishing privilege

To establish privilege the essential elements of legal professional privilege derive (in NSW) from sections 118 and 119 of the Evidence Act 1995 (NSW) and include:

1. The existence of a client and lawyer relationship;

2. The confidential nature of the communication or document; and

3. The communication or document was brought into existence for the dominant (primary) purpose of either providing the client with, or the lawyer giving, legal advice or providing legal services or for use in existing or anticipated litigation in Australia or overseas.

Where legal advice is provided by an in-house lawyer, it must be shown that the document or communication was brought into existence in the course of the performance of the lawyer's professional role and for the same dominant purpose.

In considering the dominant purpose for why a communication or document is created, this must be considered as at the time it was created (see Barnes v Commission of Taxation [2007] FCAFC 88). For example, a file note of a witness discussion created for the primary purpose of preparation for a hearing ought to be considered privileged. Similarly, an expert report that is obtained for the purpose of evidence for a hearing is privileged, until such time as it is served and privilege is waived.

When a document or communication is created, if an institution, person or party wishes to maintain privilege over it, the onus of proof is on the party wishing to claim privilege (see Douglas v Morgan [2019] SASCFC 76).

Waiving privilege

But! Be warned of any inadvertent disclosure of documents or confidential communications over which an institution or person may have claimed privilege. Privilege, once obtained, can also be easily lost.
Privilege can be waived intentionally, known as express waiver, or through conduct which is inconsistent with the maintenance of confidentiality.

Partial disclosure of a document or confidential communication can also amount to waiver of the entirety of the document or confidential communication. For example, if reference is made to the specific details of advice or evidence provided by a witness, this may waive privilege over either of these documents. However, the mere reference to there being an advice or a statement is not sufficient to waiving privilege.

For instance, compare these two scenarios:

1. "I received advice today from WXY Firm that considers my risk" 

2. "I received an advice today from WXY Firm that I was at risk of a finding of liability being made against the institution because of XYZ".

In the second example, the disclosure of the specificities of the legal advice is inconsistent with the maintenance of its confidentiality.

Privilege belongs to a client and not to a lawyer and it is only the client who is entitled to its benefits and who may waive that entitlement, unless it is found that a lawyer has ostensible authority to waive privilege for the client - even if that lawyer is not acting with a client's express instructions. Therefore, disclosure of a privileged document or communication by a lawyer who is perceived to have a client's authority will be sufficient to waive privilege.

For example, consider a lawyer who provides an affidavit to a Court stating:

1. "I spoke with witness John Smith who denied the allegations"

2. "I spoke with witness John Smith who informed me that he "denies the allegations" and provided me with a signed statement to this effect".

Again, the specificities of the disclosure, even though made by a lawyer who may not have received a client's express instructions to disclose the details of the statement to the Court or any other party, may be such where it is arguable that privilege has been waived.

A party may also waive privilege if they make it an 'issue' such that waiver is necessary. For example, in consideration of any limitation defences for an institution it would be necessary to determine when the claimant first had requisite knowledge of an injury or an institution's responsibility. Privilege would usually be maintained on legal advice which was provided to a claimant, however this privilege ought to be waived when it is an issue for which they are seeking to obtain a benefit (i.e. by bringing a claim clearly outside of a limitation period timeframe).

Inadvertent, or mistaken, disclosure of a privileged document is usually not sufficient to waive privilege and a Court should ordinarily permit the correction of a mistake, however in determining if an action is inconsistent, a Court will consider fairness with reference to the particular context and circumstances of the case.

Where a party asserts that there has been a waiver of privilege, the onus of proof is on that party to establish the waiver (see Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR). That is, it is up to the party who wishes to break privilege to establish that waiver has been made.

In these circumstances, where privilege exists, waiver should be avoided wherever necessary to protect a client's best interests. 

Guidance for maintaining privilege:

1. Ensure privileged documents and communications are marked privileged and confidential (though doing so does not in and of itself mean a document is privileged, it can help to distinguish such documents for the recipient);

2. Do not disseminate confidential or privileged information to persons outside of your organisation unless absolutely necessary and carefully control who within your organisation receives such information;

3. Be very careful to avoid any reference to privileged information in communications with any persons or institutions outside of your organisation and if in doubt, don’t reference it at all;

4. Be mindful of documents that are created internally. Correspondence, file notes and summaries of information drafted within an organisation are open to be called upon by subpoena unless protected by privilege.