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The value of legal professional privilege highlighted
With legal professional privilege gaining significant spotlight recently, two companies have issued a statement reinforcing its importance in the lawyer-client relationship.
Emma Musgrave
The Australian Institute of Company Directors and the Governance Institute of Australia have released a “joint statement on board minutes”, highlighting several contemporary issues impacting the Australian market at present, and how members should respond.
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One of those issues, the companies emphasised, is legal professional privilege.
Seeking legal opinion from Dominique Hogan-Doran SC and Douglas Gration, the statement noted: “Legal professional privilege should be considered”.
“Confidential communications between lawyers and clients for the purpose of providing or obtaining legal advice and confidential communications between lawyers and their clients and third parties for the purposes of actual or anticipated litigation are privileged and are not normally admissible in evidence,” the statement said.
“Documents containing those communications are also not normally discoverable in legal proceedings.
“Boards will often consider a company’s legal advice. Privilege is not usually lost by the board receiving the advice. However, it is important to exercise caution and judgment in determining the degree of detail of privileged information (if any) that is necessary to include in the minutes.”
In many cases, the statement added, it may be appropriate to simply note that the board considered relevant legal advice when making a decision.
“Any privileged information in the minutes should be clearly identified and ideally included in an appendix or attachment,” the statement said.
“Legal advice should be sought where necessary. In particular, where minutes refer to privileged advice, they should not be provided to third parties without first taking legal advice, because disclosure of the substance of the legal opinion might result in the loss of privilege.”
The statement from the Australian Institute of Company Directors and the Governance Institute of Australia comes after the Law Council of Australia and the Australian Tax Office confirmed they are working together to develop a new protocol tackling legal professional privilege claims.
