Protecting legal professional privilege in-house: practical steps
By Chris Jordan and Emma Cashen | Friday, December 23, 2005
This article discusses practical steps that may aid in maintaining a claim for LPP In-House. For a more extensive discussion on recent cases please see our article 'Legal Professional Privilege In-House'.
1. In-house lawyers
- Wear only one hat – for example either a commercial or legal hat. If two hats must be worn make sure it is clear which one you have on at any particular time
- Consider using different signatures for different roles and retaining different files for each role
- Identify disclosure risks at the time the communication is made and consider the dominant purpose test
- Hold a practising certificate
- Attend continuing legal education sessions regularly
- Maintain Law Society or Law Institute memberships and other professional memberships
- Stay alert to new decisions on LPP
2. Communications
- Mark advice ‘Privileged and Confidential’ where appropriate
- Ensure key legal documents are provided on a confidential basis
- Send privileged and non-privileged material separately
- Beware of allowing privileged material to be passed outside the organisation or widely circulated internally (be especially careful in relation to who is cc’d on e-mails containing such material)
- Avoid using bcc on e-mails containing privileged material as it can be difficult to keep track of all recipients
- In-House lawyers should control the distribution of legal advice In-House
- Make communications with third parties relating to legal advice or litigation through external lawyers
3. The organisation
- Educate staff – be aware of waiver when negotiating or making submissions or announcements - don’t declare that you have legal advice and what that advice may be (even where you may be under a continuous disclosure obligation to inform the market of the matter)
- Ensure that the roles of those in the legal group are clearly stated and that lawyers report to legal managers for their legal roles
- Ensure that lawyers are permitted to carry out their legal roles independently and without commercial interference
- Establish protocols for the distribution of legal advice internally – who may see it, keep it confidential, do not distribute it widely and do not send it outside the organisation
- Ensure that legal staff are remunerated on a salary basis for their legal work – avoid remuneration linked to the commercial targets or the performance of the organisation
This legal briefing was written in 2005 and may not reflect the latest legal developments. We encourage you to contact us for up-to-date advice for your particular circumstances.
