keeping it privileged.
our top tips for protecting legal professional privilege.
tl;dr
Privilege over legal advice can be easily waived if you don’t take steps to protect it.
Whether you are an in-house lawyer, or work with lawyers, make sure you take the steps we’ve outlined below, like claiming privilege in written communications; and limiting circulation to the extent possible.
What is legal professional privilege?
The principle of legal professional privilege (LPP), also known as ‘lawyer-client privilege’, protects the confidentiality of communications between a client and their lawyer.
Whether you are an in-house lawyer, or work with lawyers, it’s important to understand how to protect LPP over legal advice.
Take it from us, the lawyers who have prepared legal advice for you, have likely gone to great lengths (and potentially, some sleepless nights) to provide you with that advice. Plus, you’ve probably spent good money on the advice too.
Read on for our top tips for protecting LPP over legal advice.
For busy in-house counsel
As in-house counsel, you only enjoy the benefit of LPP over their internal advice if you are fulfilling your role as a lawyer to the business, operating independently from the rest of the business, and not serving in a non-legal position (e.g. Head of P&C, Head of Projects, Corporate Secretary, etc.).
Here’s our top tips for protecting LPP for in-house lawyers:
👉🏼 It goes without saying, don’t forget to claim privilege in your written communications where appropriate. (e.g. add the words “Privileged & Confidential”). This will make it easier to identify and protect confidential information.
👉🏼 Always indicate your capacity as an in-house lawyer, when dealing with others, both internally and externally (an easy way to do this is to indicate you are a lawyer on your email signature, even when sending those ‘after hours’ emails on your phone).
👉🏼 Where you intend to share legal advice with stakeholders, also include a statement on the advice which asserts privilege and expressly indicates that it is not waived by the sharing of the advice.
👉🏼 Distinguish between open and privileged communications. In open communications (e.g. with stakeholders, auditors, regulators, etc), avoid mentioning any confidential legal advice or privileged documents (or do so carefully e.g. while asserting privilege).
👉🏼 If you are providing legal and commercial advice to the business, be sure to keep the two topics separate; and where possible communicate them through separate channels (e.g. separate emails).
👉🏼 Limit circulation, to the extent possible (and advise stakeholders how to do the same).
For savvy business leaders & HR
Subject to a few exceptions, anything you tell your in-house or external lawyers will be subject to LPP (what a relief, right).
Where you obtain legal advice which may have widespread implications for your business (e.g. maybe you’re worried about non-compliance gaps), or in relation to a possible employee claim (e.g. an unfair dismissal ); you should take steps to protect this advice from later being presented before a court, or the Fair Work Commission.
You may not know that if your business does find itself in litigation, any documents which aren’t protected by LPP, may need to be ‘discovered’ (i.e. disclosed) to the other side, and the court. That’s right, anything in open correspondence between your staff may need to be produced if relevant to the matters in dispute. 🤯
Here’s our top tips for protecting LPP for business leaders & HR:
👉🏼 Ahead of time, plan who will receive the legal advice / be privy to it (and don’t forget to tell your lawyers).
👉🏼 Limit circulation of the legal advice to the extent possible (to negate any suggestion LPP has been waived). Share advice only with those who ‘need to know’ (especially when it comes to written communications).
👉🏼 Include a “Privileged & Confidential” heading in the subject line of any correspondence you have with in-house lawyers regarding legal advice (or ask them if you aren’t sure).
👉🏼 Be careful who you copy in when sending correspondence to your lawyers (and who you ‘FYI’ behind the scenes). Maybe the rest of your team doesn’t need to see the written communications and can settle for an update in the weekly catch up.
👉🏼 Check before sharing legal advice with third parties; and never share any privileged communications on third party platforms.
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This information has not been prepared with your specific circumstances in mind, and may not be suitable for your business. This information is provided for your reference only and does not constitute the provision of legal advice or other professional advice by in house nous. By relying on any information on this website, you assume all risk and liability that may result.
