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.