The value of legal professional privilege highlighted

The value of legal professional privilege highlighted

04 August 2019 By Emma Ryan
Sydney CBD

With legal professional privilege gaining significant spotlight recently, two companies have issued a statement reinforcing its importance in the lawyer-client relationship.

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.

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”.

Advertisement
Advertisement

“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.

SPONSORED CONTENT

“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.

The value of legal professional privilege highlighted
Intro image
lawyersweekly logo
The Women in Law Awards is the benchmark for excellence, recognising the empowering women influencing the Australian legal profession, celebrating the female leaders, role models and future champions of the industry. Register for the waitlist today for the opportunity to attend this remarkable awards ceremony and network with top legal professionals and fellow peers.
Visit womeninlaw.com.au

Tags