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  • Documents partly privileged

    In some cases, only parts of a document are created for the dominant purpose of legal advice or litigation and will be covered by legal professional privilege – for example, minutes of a meeting.

    In this situation, the part you are claiming is privileged must satisfy the dominant purpose test. You must provide the complete document and redact (edit out) the part you claim is subject to privilege.

    In-house lawyers

    We recognise that legal professional privilege can apply to advice given by a lawyer employed by the client, provided the dominant purpose test is satisfied and the lawyer:

    can demonstrate an appropriate level of independence from the employer client

    was acting in the capacity of a lawyer at the time that the communication was made

    has been admitted to practice as a lawyer.

    If an in-house lawyer holds more than one position or function, it may be unclear as to which role they are acting in when providing the advice – a person giving legal advice may not necessarily be acting in a lawyer and client relationship.

    When reviewing the level of an in-house lawyer’s independence, we may consider:

    the lawyer’s role within the organisation and their reporting lines to management

    if the lawyer's remuneration is linked to business performance

    if the lawyer has authority to report directly to the directors where their opinion differs from management's position.

    A communication from an in-house lawyer must be made (or the document prepared) in their capacity as a lawyer, and not in a management role or other capacity.

    The lawyer must be acting in a legal or professional capacity, and the advice given must be of a legal nature. Generally, the advice cannot relate to policy or executive decision making, or be commercial in nature.

    The following factors may be relevant to an in-house lawyer's legal or professional capacity:

    how the lawyer signed or described him- or herself in the document or communication

    whether the lawyer also holds a senior role within the organisation, and if job descriptions are attached to each position

    whether the lawyer has several functions, positions, roles and responsibilities within the company

    the capacity in which the lawyer was acting at the time the document or communication was made or prepared.

    Third parties

    Legal professional privilege can extend to non-agent third parties who have made a communication – for example, communications may be authored by an accountant for their client to be used in obtaining legal advice.

    The third-party communication must satisfy the dominant purpose test, and the communication must be confidential to be privileged.

    Communications between a lawyer or client and a third party which are for actual or reasonably contemplated litigation may also be privileged.

    Example –Third parties

    Nathan seeks advice from his accountant on structuring a transaction. Both Nathan and his accountant intend to submit the advice to a lawyer for comment.

    While the lawyer's comments may be privileged, the accountant’s advice will not be because its purpose is independent of the need for legal advice.

    Alternatively, Nathan may be able to claim that these advice documents should remain confidential if they are restricted under the accountants' concession.

    End of example
      Last modified: 29 Nov 2017QC 37592