Protecting legal professional privilege in-house: practical steps

Protecting legal professional privilege in-house: practical steps

This article discusses practical steps that may aid in maintaining a claim for LPP In-House. For a more extensive discussion on recent cases please see our article 'Legal Professional Privilege In-House'.

1. In-house lawyers

  • Wear only one hat – for example either a commercial or legal hat. If two hats must be worn make sure it is clear which one you have on at any particular time
  • Consider using different signatures for different roles and retaining different files for each role
  • Identify disclosure risks at the time the communication is made and consider the dominant purpose test
  • Hold a practising certificate
  • Attend continuing legal education sessions regularly
  • Maintain Law Society or Law Institute memberships and other professional memberships
  • Stay alert to new decisions on LPP

2. Communications

  • Mark advice ‘Privileged and Confidential’ where appropriate
  • Ensure key legal documents are provided on a confidential basis
  • Send privileged and non-privileged material separately
  • Beware of allowing privileged material to be passed outside the organisation or widely circulated internally (be especially careful in relation to who is cc’d on e-mails containing such material)
  • Avoid using bcc on e-mails containing privileged material as it can be difficult to keep track of all recipients
  • In-House lawyers should control the distribution of legal advice In-House
  • Make communications with third parties relating to legal advice or litigation through external lawyers

3. The organisation

  • Educate staff – be aware of waiver when negotiating or making submissions or announcements – don’t declare that you have legal advice and what that advice may be (even where you may be under a continuous disclosure obligation to inform the market of the matter)
  • Ensure that the roles of those in the legal group are clearly stated and that lawyers report to legal managers for their legal roles
  • Ensure that lawyers are permitted to carry out their legal roles independently and without commercial interference
  • Establish protocols for the distribution of legal advice internally – who may see it, keep it confidential, do not distribute it widely and do not send it outside the organisation
  • Ensure that legal staff are remunerated on a salary basis for their legal work – avoid remuneration linked to the commercial targets or the performance of the organisation