Legal Professional Privilege Online Tool
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9 Dec 2024
Insight
Australia
Legal Professional Privilege (LPP) remains one of the most important areas of law for businesses to understand, particularly those navigating internal or external investigations, regulatory enforcement action, litigation or dispute resolution.
Our regulatory and disputes specialists have developed a suite of resources below to give businesses and in-house legal teams practical guidance on common questions and scenarios that arise when dealing with LPP in Australia.
Stay tuned for more insights from our Australian LPP specialists or you can subscribe to receive LPP Australia updates via the instructions at the bottom of the page. Feel free to reach out to your usual Herbert Smith Freehills contacts with any queries you might have on Legal Professional Privilege. Alternatively, you can contact one of our specialists below.
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Legal Professional Privilege Quick Guides
Claiming LPP
Common law or Evidence Act test may apply. Always check what test applies to the situation.
Waiver
Waiver occurs when the holder of the privilege acts in a way that is inconsistent with the communication remaining confidential.
In-House Counsel
LPP can apply to communications with or documents prepared by in-house legal counsel.
Protecting LPP when providing material to third parties
“Common interest privilege” is not a true privilege at all, but an exception to the waiver rule. Privilege will survive if the communication is disclosed to a third party who shares a sufficient “common interest” with the privilege holder.
What is privileged in day-to-day communications?
Whether a communication will be privileged is a question of substance, not form.
Board Minutes and Papers
It is, of course, entirely appropriate for a company’s board to seek and receive legal advice. Indeed, in some circumstances, it will be necessary for the directors to do so.
Tax considerations
This guide provides guidance on the treatment of internal and external communications, including formal or informal documents such as emails, text messages and WhatsApp messages.
Communicating with opponents while preserving privilege
As waiver is a fact-specific area, comparisons to past cases are often unhelpful. The important thing to remember is that it is critical to maintain the confidentiality of the privileged communication or document.
Witness statements and expert reports in litigation
While care is always necessary when dealing with questions of legal professional privilege, particular caution should be exercised when handling issues of privilege regarding witness statements and expert reports to be used in litigation.
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Key contacts
Ante Golem
Partner, Head of Disputes, Australia, Perth
Graeme Johnson
Consultant, Sydney
Andrew Eastwood
Partner, Sydney
Christine Wong
Partner, Sydney
Jacqueline Wootton
Partner, Brisbane
Danielle Briers
Executive Counsel, Sydney
Legal Notice
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
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