Stafford Shepherd, Queensland Law Society Principal Ethics and Practice Counsel, returns to The Callover podcast to discuss what legal professional privilege is, why it is such a fundamental part of the legal profession, how we can protect it, and when and by whom it can be waived.
What is legal professional privilege and why is it so critical to the legal system?
“I think it’s a question before that. And we need to ask ourselves what is confidentiality. So confidentiality is any information we receive during the course of providing legal services or may be sometimes prior to actual legal services being delivered, which is the client’s. Now that information is to be retained by us, unless there are certain authorisations provided by a variety of rules.
“Confidentiality and client legal privilege, or referred to as legal professional privilege, are the client’s. They are not ours. Privilege is, with respect to the information, advice and documents we have considered for and on behalf of clients. Sometimes it relates to litigation. Other times it relates to anticipated litigation. So not everything which is confidential will necessarily be privileged. Privilege is narrower in scope. Both of them, both confidentiality and I refer to it as client legal privilege (because it’s the client’s privilege not ours) are to be preserved unless they fall within some of the exceptions which are provided by both the rules and at common law.
What I can say about it is it’s essential, because the whole relationship between a solicitor and client is based on trust and confidence.
“It ensures that the client feels free to divulge any information to us required to either further the issues or to preserve the issues. Sometimes we need to warn clients that certain information they intend to give us may be compelled to be provided to others, and we must give that full warning to a client. So the client is aware that what they had thought would be a secret may not necessarily be sacred.”
In the event that a claim for privilege is challenged in court, how can a practitioner go about defending it?
“Well, there are a couple of things. First of all, if you are no longer acting on behalf of a client and the subpoena is served on you, then of course you are compelled to attend the court independently of the client. And as a consequence of our position as an officer of the court, we should assess whether the documents that are being subpoenaed before the court have privilege attached to them.
“Not all documents are file will be privileged. The most often I say this is in conveyancing matters where a conveyancing file has been subpoenaed before the Federal Circuit and Family Court of Australia. Alternatively, before the Federal Court, there may be certain documents which are privileged concerning advice given on structuring that may be privileged. So, they should be separated out, they should be placed into an envelope, and they should be indicated to be privileged. Whether we argue that privilege issue is a matter for the client, the client has to make that decision. Our task is to sort through the file to determine what is confidential and what is privileged. Then to ensure that it goes to the correct court.
“And then the next stage is, if we’re acting in the matter, we must advise the client that they should exercise privilege if they’re in the box. Alternatively, we should, on instructions, argue that privilege before the court itself. If it’s not in a court situation, if it’s a warrant that has been issued by a police officer, then there are a series of protocols that exist between the Law Society and the Queensland Police Service about what those documents are and again, independently of the client and arising from our position as an officer of the court, we need to sort through what is required. If we feel that is privileged, that is where advice has been given by us with respect to a matter, or where there are confidences that have been exchanged which has the privilege attached to it, then we must ensure that they are protected by being sealed, and it will be for a court to later determine the issue of whether privilege is or is not attaching to that document or information. If we merely give it, if we waive it, we are deserting our client. It is a client right to have the information preserved unless they choose to waive of the matter.”
If privilege is accidentally waived, what can a practitioner do?
“Well, a couple of things. If it’s inadvertent and we have an inadvertent disclosure rule in the ASCR 2023, then of course, a practitioner who receives the material, knowing it to be confidential and knowing that it has been inadvertently disclosed, should not, of course, use material, (and) should destroy or return the document to the sender. The High Court has told us that this obligation is independent of anything that exists in the rule. Okay, it was a unanimous decision of the High Court in those matters, but if a waiver has occurred, then we should probably be, first of all, informing our insurer more than anything. And secondly, we should follow the advice of their insurer. It’s hard to say because sometimes clients do choose to waive.”
And what circumstances might a client decide to waive privilege?
“That’s difficult to say. They may choose to waive privilege because they believe that it will mean an earlier outcome to the issue. They may waive the privilege to ensure, in part, that certain things are being conceded, but ultimately, it’s their decision. After considered advice from us.”
What are the most common situations where privilege might accidentally be waived?
“It’s normally inadvertent. It’s normally where the email has been sent to the fax or the letter has been indirectly sent. I can recall in my early years I was involved in building litigation. This was the days when we had fax machines and we had a stream of documents flowing out, but it wasn’t meant for us. It was meant for the other person’s client. Now, we certainly disengaged a fax machine because it was destroying the rolls. And secondly, we destroyed the documents and I rang the solicitors. But this was before rules. It was just something we always knew that we had to do.”
And clients obviously also have a role in maintaining privilege. So how can we best educate them about the importance of and how to do so well?
“It’s like going back to the start of the relationship. You need to have a good conversation. You need to indicate to the client that most information that I give to you will be confidential. There will be occasions where you give the client advice, either in anticipation two or in the course of litigation, which will be of importance for them to make decisions about.
“They should not be broadcasting that information to third parties or to others, because that could be a waiver of the privilege or the confidences which the client may wish to retain. Waiver can occur either expressly or inadvertently. You should need to inform them that they shouldn’t, leave their emails available to be read publicly or privately. They need to lock their devices to ensure that they preserve the ability to consider the information, if they permit others to have access to it. They are probably going to waive the privilege associated with the information.”
How can firms create internal training systems or processes to safeguard privilege?
“They should ensure that their staff, fully aware, their employment contracts, of their obligation of confidence, most employment contracts today will provide for that. Secondly, there should be regular, continuing education about what is confidentiality and what is privilege. They should thirdly, test their systems to ensure that they have adequate policies in place to avoid inadvertent disclosure.
“Because, remember, the sender could also be found and be the subject of a complaint to the Legal Services Commission. I can recall many years ago, one of the issues was that a member of the public found a file on the bus, which was a client file. That is a breach of confidence, but you need to have in place appropriate policies associated with the protection of confidence. That is, if a file is to be taken out of the office, it should be securely locked and only used for the purposes of being used. It shouldn’t be left in third party transport.”
Technology plays a significant role in legal practice. Now, how can lawyers protect privilege in digital communications, like emails or even cloud-based storage applications?
“Well, they, first of all, need to ensure that the third-party server is within an appropriate jurisdiction. They need to understand the level of confidentiality. They need to understand the cyber security arrangements that exist between the third-party server and elsewhere. They need to ensure, particularly with respect to emails, that they are encrypted, if possible, and sent to their client alone. Encryption means that, of course, that the receiver must seek the sender’s access and that acts as a means of further security. Not everything will need to be done that way. I would also recommend that if there is important issues to be sent by that form of technology, that it be done by letter so that you learn to attach and encrypt the letter.”
What advice would you give to new practitioners about ensuring privilege is maintained in communication and practice?
“If in doubt, ask the principal.”
You can listen to this episode of The Callover now. A future podcast will focus on conflicts of interest.
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