Legal Professional Privilege (Part 5)

In this part of our series on legal professional privilege, we begin to explore in greater detail the concept of privileged ‘communications’ and practical considerations for maintaining privilege over electronic communications.

Privileged communications

As previously discussed, legal professional privilege attaches to communications between a legal adviser and client or, in limited circumstances, certain third parties. We have previously noted that generally clients will be concerned with the recording of a communication in a document, and thus clients tend to focus on whether a document will be legally privileged rather than the communication itself. This tendency was recognised by his Honour Toohey J in the High Court case of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, where his Honour noted that "…it is natural to speak of legal professional privilege in terms of documents”.

However, it is useful to revisit the concept of a privileged communication to deepen our understanding of the scope of legal professional privilege. In particular, it is important to understand that privilege attaches to a communication recorded in a document and not the actual document itself. In the words of McHugh J in Propend Finance, legal professional privilege is "…concerned with communications, either oral, written or recorded, and not with documents per se…”.

Consequently, despite the fact that legal professional privilege is often referred to as attaching to documents, one should be mindful of the fact that it is the "communication” contained within a form of media that should be the focus of consideration of whether that communication is protected by legal professional privilege.

Electronic forms of communication

Email is a ubiquitous form of communication which has significantly facilitated the ease of doing business in the modern commercial world. As with any other communication, emails are a form of communication that legal professional privilege can attach to: Kirby J in Propend Finance recognised that all types of media should have the potential for protection of privilege:

"…because of advances in information technology, compulsory processes will now, increasingly, involve the multitude of material forms used in effecting communication; ranging from photocopies or original documents to audio/visual tapes and computer software. Necessarily, the doctrine of legal professional privilege must adapt to a world in which these media are the stuff of disputes concerning criminal and civil obligations and the rights of clients.”

A number of Federal Court decisions over recent years have considered the question of claims for legal professional privilege over electronic communications - see for example DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 1191. All of the Federal Court cases accept that legal professional privilege can apply to electronic communications. However, the cases show that the Court will often pay special regard to the identity of all of the recipients of an email - and particularly who was primary recipient of the email as opposed to a ‘cc’ recipient - when considering claims for privilege.

The identity of the primary and ‘cc’ recipients may establish a prima facie basis for determining the purpose of the communication. For example, in the DSE proceeding, his Honour Allsop J determined questions of privilege of a number of emails by having regard to the recipients of those emails as well as the subject matter of the email.

The case establishes that it will not be enough to merely ‘cc’ a lawyer on an email to establish a claim for privilege. However, if an email is ‘cc’ed’ to a lawyer when sent by an agent of a client to the client, and that email concerns a legal subject matter, then it becomes easier to establish that the objective dominant purpose of the email is to obtain or provide legal advice.

Practical considerations in the use of emails

The proliferation and universal use of email highlights that there has never been a greater need for vigilance in the preservation of confidentiality in electronic communications. As a practical matter, we recommend that regard be had to the following "hygiene” guidelines to ensure legal professional privilege is not compromised through the use of emails:

• Privilege is more likely to be maintained if an email is generated by a lawyer or the client in connection with a clearly identified legal subject matter. The marking of email correspondence as "Strictly Private & Confidential - Subject to Legal Professional Privilege” will assist in identifying privileged communications at a later stage - but this sort of labelling will not of itself render an email privileged.

• Separate any privileged communications from non privileged communications where possible.

• Merely forwarding to, or ‘cc-ing’ in the lawyers on an email, will not demonstrate that an email is created for a privileged purpose. If an email is forwarded with the intention of obtaining legal advice, ensure that the request for advice is included in the email - even if a verbal request for that advice will also be made.

• If the intention is that an email is to be privileged, consider using language which explicitly stipulates that the (sole) purpose of the email and any attachment is provided in connection with seeking or providing legal advice.

• Minimise the number of third party non-legal recipients in emails between clients and lawyers as copying or forwarding to multiple non-legal third parties may give rise to an assumption that an email has either not been created for a privileged purpose or that any privilege has been inadvertently waived.

• When contemplating forwarding to or copying in non-legal third parties, consider what the purpose is of having the third party copied in? If having the third party involved does not displace the conclusion that the sole or dominant purpose of the communication is to obtain legal advice or is in relation to current or contemplated litigation, then these actions will not necessarily waive privilege.

• Consider having email protocols in place to ensure that when emails containing confidential legal advice or requests for legal advice are forwarded to a third party that this is done on an express basis of confidentiality. This will help to objectively indicate that there was no intention to waive legal professional privilege.

• Do not ‘bcc’ emails - as the bcc recipients will not be revealed on the other recipients’ records, making it more difficult to identify where the email has been sent.

• Where multiple parties are involved, ensure that the following is clearly acknowledged in any retainers/letters of engagement between the client, the lawyer and third party advisers:

• The scope of the legal services to be provided are clearly stipulated particularly in the retainer between the client and the lawyer;
  
• The lawyers and third party adviser are authorised to communicate information to each other (including privileged information) if they consider it necessary or
  appropriate to do so;
  
• The communications are to be made for the purpose of effecting the particular project/transaction on behalf of the client in a way which remains confidential; and
• The third party adviser and the lawyers owe an obligation of confidentiality to their common client.

On 30 November 2006, the Attorney-General, Philip Ruddock announced the commencement of an inquiry by the Australian Law Reform Commission (ALRC) into legal professional privilege as it relates to the activities of Commonwealth investigatory agencies that have coercive information gathering or associated powers. In his media release, Mr Ruddock recognised that:

"There are also concerns legal professional privilege is used to frustrate enforcement of Australian laws by investigatory agencies….”

In the terms of reference, Mr Ruddock noted that Commonwealth investigatory bodies with coercive information gathering powers including the Australian Taxation Office, the Australian Securities and Investment Commission and the Australian Competition and Consumer Commission (amongst others) will be considered as part of the inquiry.

With regard to the focus of the inquiry, Mr Ruddock noted that ALRC will also consider the following questions:

• "would further modification or abrogation of legal professional privilege in some areas be desirable in order to achieve more effective performance of Commonwealth investigatory functions?

• would it be desirable to clarify existing provisions for the modification or abrogation of legal professional privilege, with a view to harmonising them across the Commonwealth statute book?

• would it be desirable to introduce or clarify other statutory safeguards where legal professional privilege is modified or abrogated, with a view to harmonising them across the Commonwealth statute book? and

• any related matter.