Legal Professional Privilege

Legal Professional Privilege

SUMMARY

The Legal Professional Privilege Guideline describes when legal professional privilege may be claimed and the circumstances in which it may be lost.

GUIDELINE

Purpose

Legal professional privilege protects the confidentiality of University communications.  Legal professional privilege is important.  This Guideline describes when the privilege may be claimed and the circumstances in which it may be lost.

Guideline

DEFINITION
Legal professional privilege is a rule of law intended to preserve the confidentiality of communications between the lawyer and a client.  In litigation, parties to legal proceedings are required to disclose to other parties and to the court all documents in their possession power and control which are relevant to a matter in issue in those proceedings.  “Documents” include electronic or hard copy, handwritten or typed, internal and external correspondence, notes of meetings, notes of telephone calls or conversations, discussion notes, briefing papers, minutes and drafts of those documents.  Correspondence may be formal (letters) or informal (emails).

If a document or communication is subject to legal professional privilege, it does not have to be produced in legal proceedings. 

DOMINANT PURPOSE TEST
Legal professional privilege attaches where the communication between the University and its lawyer (internal or external) is made for the dominant purpose of giving or obtaining legal advice or in connection with existing or anticipated legal proceedings.  To obtain the legal professional privilege the communications must be confidential and the lawyer must act in his or her capacity as the University’s legal adviser.

Marking a document “confidential” or “privileged and confidential” is not sufficient.  The privileged documents must be treated as confidential in order to maintain privilege.  Privilege can be lost if advice is given by legal counsel and then that advice is passed on by the recipient to another person either within the University, or outside.  It is important to treat all communications to and from the University lawyers with care.  If the privilege is waived, the document no longer has protection and will have to be disclosed in the legal proceedings.  Once waived, privilege cannot be regained.

These guidelines should be followed to ensure that legal professional privilege is maintained in communications with the General Counsel’s Office:
  • all requests for legal advice should be in writing (including email).
  • communications to the General Counsel’s Office should be marked “Confidential”.  If you receive advice from a University solicitor or external lawyers, do not copy or forward to other persons.  To maintain privilege, the University solicitor may forward communications to third parties or other University staff as required.
  • if you receive legal advice from a University solicitor or an external legal adviser do not send a summary, comment or the conclusions of that advice to another person.  Your communication will not be privileged and a reference to advice received may waive the privilege of that advice. 
  • briefing of external solicitors may only be made with the approval of the General Counsel’s Office.  The General Counsel’s Office should always be copied in on communications with the external solicitors.
If the University does not adequately protect its ability to claim legal professional privilege over documents and communication, then its prospects of success in legal proceedings may be significantly adversely affected.  Legal professional privilege is important.

Guideline Information

Contact Officer General Counsel
Date Approved 17 February 2010
Approval Authority General Counsel
Date of Commencement17 February 2010
Amendment History13 May 2014 – updated Checklist
Date for Next ReviewFebruary 2013
Related DocumentsLegal Services Policy
Legal Instruction Checklist
Subpoena Procedure
Government Information (Public Access) Act 2009 (NSW)
KeywordsLegal, Professional Privilege, Solicitor, Counsel

Asset ID = 423120

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