Legal privilege - keeping matters confidential

07 May 2009
Legal privilege protects communications between a lawyer and their client. But there are a number of instances where clients may unknowingly jeopardise their privileged information. Kate McHaffie discusses the ins and outs of legal privilege and how to avoid common mistakes.

During litigation, you have to give the other side a copy of all your documents that are relevant to the issues between the parties.  The exceptions to this rule are privileged documents, which don’t have to be disclosed. 

Communications between you and your legal adviser are privileged. This allows your legal adviser to advise you candidly on both the strengths and weaknesses of your case.  A ‘legal adviser’ is:

  • a lawyer holding a current New Zealand practising certificate
  • a New Zealand patent attorney where the attorney is advising on intellectual property
  • an overseas practitioner (for example, an Australian patent attorney).

You may waive privilege in your communications with your legal adviser if you don’t keep the communications confidential.  For example, sending your legal adviser’s opinion to someone infringing your intellectual property rights will waive privilege in that opinion. Even if you just quote some parts of the opinion, you may waive privilege in the whole document.

You may also waive privilege by providing your legal adviser’s opinion to another adviser, if it is not made clear that the document is to be kept confidential.

The following are some guidelines for protecting your privileged documents:

  • Don’t give your legal adviser’s opinions to anyone outside your organisation, unless that person is also your legal adviser (for example, you can give your New Zealand lawyer’s opinion to your Australian lawyer, or to your New Zealand patent attorney).
  • If you do give a privileged document to someone else who is advising you, make sure you tell that person that they have to keep the document confidential and not show it to anyone else.
  • Within your organisation, only circulate privileged documents on a ‘need to know’ basis.  This reduces the risk that the document will be sent outside the organisation, or to people within the organisation who are not in a privileged relationship with the legal adviser.
  • Don’t refer to your legal adviser’s opinions in letters you write to third parties—for example, ‘I have an opinion from my patent attorney that says xyz’.


If you have any questions about privilege, please get in touch with your A J Park contact.

This article was published in IPNewz, May 2009.

  • IPNews