Privilege - what not to do

Privilege is not a given simply because there is confidential communication between a lawyer and their client for the dominant purpose of seeking or giving legal advice - there are a number of circumstances in which privilege may be lost or waived. Understanding these will help you ensure that legal advice remains privileged and does not have to be produced to opposing parties.

Privilege can be waived or lost either expressly, by simply producing the communication; or impliedly, through the conduct of the party who has the privilege. The key to waiving privilege is acting inconsistently in maintaining it. This article sets out the circumstances in which privilege for communications may be lost or waived.

Disclosing the gist of legal advice

A statement referring to the existence of legal advice may not necessarily waive legal professional privilege, providing there is no action inconsistent with maintaining the confidentiality of that advice. The purpose of the partial disclosure is also important. Below are the types of factors that courts take into account in determining whether privilege has been waived.

Media releases

Making a public announcement by issuing, e.g., a media release saying you will win a claim based on legal advice will waive privilege. In cases where there is a 'clear or deliberate disclosure of the gist or the conclusion of legal advice received', it has been held to be unfair to allow a party to publicly announce such an assertion, and to insist on confidentiality as a ground for refusing access when inspection of the advice is requested.1

Public announcements

Where it can be shown that there is limited disclosure in the public interest, a court may find that privilege has not been waived. In College of Law Limited v Australian National University,2 Justice Griffiths found privilege had not been waived for legal advice, where reference had been made to its 'overall effect' in agenda papers for an ANU council meeting and in another document, both published on the University's website. It was held that the purpose of the disclosure was not to secure an advantage for ANU, but to provide 'public accountability and transparency in respect of the University's activities' in the context of a restructure.

Communications to opposing parties

In communications with opposing parties, referring to legal advice that has been received supporting your position is consistent with a voluntary disclosure of the gist of the advice and is, therefore, considered a waiver of privilege.3 In Rich v Harrington, it was found that merely referring to the existence of legal advice supporting the position that the party had acted properly, as a basis to inform the other party that they would be unsuccessful in pursuing their claim, was consistent with a voluntary disclosure of the gist of the advice.4

Board minutes

Where legal...