Legal professional privilege
"Legal professional privilege" preserves the confidentiality of communications between a lawyer and a client. Ordinarily, parties to legal proceedings are required to disclose to other parties and the court all documents in their possession, power and control which are relevant to a matter in issue in the proceedings. All types of documents must be disclosed, whether they are in electronic or hard copy, handwritten or typed, including internal and external correspondence (emails, letters, memorandums and faxes), notes of meetings, phone calls or conversations, discussion notes, briefing papers, minutes and any drafts of any of these documents. However, if "legal professional privilege" attaches to a document, the document does not have to be produced in connection with legal proceedings, or in other circumstances, such as on receipt of a search warrant from the police or a mandatory notice for production from a regulator.
Communications between a client and a lawyer which are made for the dominant purpose of giving or obtaining legal advice or in connection with existing or anticipated legal proceedings generally attract "legal professional privilege", so long as the communications are confidential and the lawyer is acting in his or her capacity as a lawyer.
Marking a document as "privileged and confidential" is not sufficient. The document must also be treated as confidential if privilege is to be maintained. "Legal professional privilege" can easily be waived if communications to and from lawyers are not treated with care. If privilege is waived it means the document is no longer protected and would need to be disclosed in connection with legal proceedings. Once waiver has occurred it cannot be retrieved.
Following are guidelines to ensure "legal professional privilege" is maintained in communications with the OGC:
- All requests for legal advice must be made in writing.
- All communications to the OGC should be marked "confidential" and communications from the OGC will be marked "privileged and confidential”.
- Communications containing or relating to legal advice should be copied or forwarded only to persons within the University who are directly concerned with the issue that is the subject of the legal advice.
- Communications containing or relating to legal advice should never be copied or forwarded to anyone outside of the University without first seeking the consent of the OGC.
- Any legal advice that is copied or forwarded to third parties should be sent "as is" and not with any comments about or summary of the legal advice.
- All communications with external solicitors must go through the OGC.
- The conclusions or essence of legal advice obtained from the OGC or from external solicitors should not be referred to or commented on in separate communications with third parties.
Maintaining "legal professional privilege" is an important issue for the University. Challenging another party's assertion that a document is privileged can be used as a tool to gain a strategic advantage. If a party does not adequately protect its "legal professional privilege" it can be detrimental to its prospects of success in legal proceedings.
Please contact the OGC if you have any queries in relation to handling legal advice.