Legal Professional Privilege – 12 useful tips to preserve it

What does the privilege apply to?

Legal professional privilege applies to confidential communications or documents created for the dominant purpose of:

• a client seeking legal advice or the lawyer giving legal advice; or
• use in actual or anticipated litigation.

The onus of proving the dominant purpose of a document or communication lies with the party claiming privilege.  If a document would have been brought into existence regardless of an intention to seek legal advice, it will not be privileged.

Where a document or communication contains both legal and non-legal advice, the portion containing legal advice will be privileged, and the non-legal advice will not be.  Non-legal advice includes advice that is purely commercial or of a public relations character.

What steps do you need to take to preserve the privilege?

1. Contemporaneously document the reason for creating privileged material, especially when the dominant purpose exists but is not immediately obvious.
2. Ensure privileged documents are not disclosed when responding to FOI requests, subpoenas, regulatory notices and discovery orders.
3. Limit the dissemination of legal advice within the organisation to those who need to see it.
4. Avoid creating documents that intermingle legal advice with non-privileged material.
5. When engaging third parties to prepare a report intended to assist inhouse counsel provide legal advice to the business, the third party should be retained directly by inhouse counsel, not the business. The retainer or letter of instruction should explicitly reference the privileged purpose of the engagement.
6. Ensure legal advice which goes to the Board is labelled “Confidential and Subject to Legal Professional Privilege” and kept in a discrete section of the Board papers.
7. Do not label documents “privileged” unless they meet the requisite criteria.
8. Ensure that the organisation does not disclose the substance of legal advice to third parties.
9. Label all privileged documents as “Confidential and Subject to Legal Professional Privilege”, particularly when inhouse counsel is providing legal advice to the business or privilege is not apparent on the face of the document (e.g. a report prepared by a third party).
10. Avoid disclosing legal advice to the organisation’s insurers unless the insurer has accepted coverage (and common interest privilege exists).
11. Ensure the organisation does not act in any way which is inconsistent with maintaining confidentiality of communications protected by legal professional privilege.
12. If it is necessary to disclose a privileged document to a third party despite the risk of waiver, consider creating a revised version for disclosure and/or providing a copy for a documented limited purpose, subject to strict confidentiality obligations.