Waiver refresher: Be alert to the possibility of waiving legal professional privilege

Key Points: Waiving legal professional privilege over legal advice and otherwise privileged documents or communications can be disastrous, given the sensitive information these materials often contain. This first of a two part article on waiver recaps the governing principles of waiver.

In a sophisticated commercial environment, there are compelling reasons for consumers of legal services to focus on preserving legal professional privilege, as seriously adverse consequences can flow from waiving that privilege.

In this two-part article on waiver of legal professional privilege, we'll first recap the legal principles governing waiver, and identify situations where a risk of waiver commonly arises in the commercial environment. In part two we'll build on this by outlining some practical tips for decreasing the risk of waiver.

Why is waiver a problem?

The immediate consequence of waiver is that material that is potentially highly sensitive may fall into the hands of opponents or competitors. This is a particular problem where formal, written legal advice is concerned, considering that such advice often:

sets out all facts, warts and all, in relation to a dispute (some of which may not yet be known to your opponent); identifies weaknesses in your organisation's position and the strengths of your opponent's position; identifies areas of concern about the character, demeanour or credibility of witnesses whose evidence is to be used to prove your organisation's case; maps out the...