Thursday 19 January 2017
Legal privilege - what is it and whose advice is privileged
To get the best legal advice, a client needs to know they can be candid with their legal adviser without the risk that their communications could be used against them. The principle of legal professional privilege protects communications between legal advisers and clients being disclosed without the client’s permission. However, not all advisers are created equal when it comes to privilege, and you need to be sure that you’re trusting the right person with your ‘warts and all’ communications.
In this article I explain what privilege is and when it attaches, and suggest ways to protect against accidental waiver of privilege.
Legal professional privilege
Most people are aware that lawyers have to keep their client’s information confidential. The concept of privilege is related to confidentiality, but differs in some important respects.
Lawyers are required to keep confidential all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship. This duty continues indefinitely, even if the person stops being the lawyer’s client. However, a lawyer may be required to disclose a client’s confidential information in some circumstances, for example if ordered by the court. In contrast, information that is privileged cannot be disclosed unless the privilege has been waived. This is particularly important during litigation. A party must disclose confidential documents, at least on a limited basis to the other side, if the party wants to rely on them, but they do not need to disclose their correspondence with their lawyer (which could disclose weaknesses in their case).
There are two main kinds of legal professional privilege:
- Legal advice privilege, which attaches to confidential communications with clients made in the course of obtaining and giving legal services. The privilege extends to any information contained in the communication, any reference to the communication or information in another document, and any opinion based on the communication or information. Legal advice privilege only protects communications between a legal adviser and a client.
- Litigation privilege, which attaches when litigation has commenced or is ‘reasonably apprehended’ (ie, probable). Litigation privilege has a broader scope than legal advice privilege, as it attaches to communications with any person provided that it was made for the dominant purpose of preparing for a proceeding. This would include, for example, correspondence with expert witnesses.
Whose advice is privileged?
Legal advice privilege only protects advice given by ‘legal advisers’. ‘Legal adviser’ means a New Zealand lawyer who has a current practising certificate from the Law Society, a registered patent attorney, and certain categories of overseas-qualified lawyers and patent attorneys.
While your intellectual property adviser may be giving you great advice, unless they are a legal adviser as defined in law your communications with them are vulnerable to disclosure if you ever become involved in litigation. It’s also important to note that communications with your patent attorney will only be privileged when they concern advice about intellectual property. If your patent attorney is not also a lawyer with a practising certificate, any advice they give you about matters outside intellectual property (eg, commercial legal advice or the conduct of litigation) will not be privileged.
As noted above, litigation privilege is broader than legal advice privilege in that it extends to communications with parties other than legal advisers. However, litigation privilege only comes into play when litigation is on foot or is probable. For this reason, it’s not a good idea to engage in discussions with third parties ‘just in case’ litigation arises, as those communications will almost certainly not be privileged.
Correspondence between a client and their in-house counsel is privileged only if the in-house counsel has a practising certificate, the advice is intended to be confidential, and the advice relates to the provision of legal services (as opposed to say commercial or transactional matters). The circle of people privy to communications with in-house counsel should be kept very small, and the connection between the client seeking the advice and the in-house counsel providing it needs to be clear and direct. The further removed the in-house counsel is from the people in the organisation receiving the advice, the more risk there is that the advice will be found to not be privileged.
Waiver of privilege
Like confidentiality, privilege in a communication must be protected or it can be lost. As the client, the privilege is yours to waive if you want. However, to prevent the privilege being lost inadvertently it is important that you treat the communication carefully.
Privilege in a communication will be waived by:
- voluntarily disclosing any significant part of the privileged communication in circumstances inconsistent with a claim of confidentiality, or
- putting the communication in issue in a proceeding.
It is the first point above that we as lawyers are most often confronted with in day-to-day practice. Clients may want to disclose our advice or part of it to business partners, board members, licensees, or even to the other side in a dispute (eg, 'my lawyer has told me your patent is invalid etc').
If you disclose your legal adviser’s advice to a third party without conditions of confidentiality applying, you will waive privilege in that advice. Obviously disclosing an entire communication, such as a letter, will waive privilege in that communication. However, privilege in the communication can also be waived by disclosing a substantial part of it. For example, you risk waiving privilege in an entire freedom to operate opinion by disclosing a summary of that opinion to a third party.
The safest course of action is to not disclose your legal adviser’s advice or any part of it to a third party. Clearly, this isn't always practical. If you want to disclose the advice, you should first have the third party confirm that the advice will be received on the following basis:
- The advice is confidential and will be kept confidential.
- The advice is privileged and privilege is not waived.
- The advice is given for a limited and particular purpose, which should be articulated.
- The client reserves the right to demand the return of the advice at any time.
The third party should agree to these terms before you give them the advice.
And what about when you’re involved in a war of words with a competitor, and you want to tell them you have legal advice that they’re on a hiding to nothing? While this is very tempting, proceed with caution—you could end up waiving privilege in that advice. As a general rule you should avoid referring to legal advice at all, but if you really want to, make sure you talk to your legal adviser beforehand so that you do it in a safe way.
None of these suggestions constitute a magic bullet, however, and disclosing your legal adviser’s advice will always carry a risk of waiving privilege.
Getting legal advice is often a significant financial investment for a business. Make sure you protect that investment by getting advice from the right people, and looking after the advice to keep it confidential. Some takeaway points:
- If you’re not sure, ask your legal adviser if their communications with you are privileged.
- Treat your legal advice as you would any valuable confidential business information—don’t disclose it unless you absolutely have to.
- Within your organisation, only circulate legal advice to people who really need to have it.
- Outside your organisation, don’t disclose legal advice to anyone unless they’ve agreed beforehand to keep it confidential.