How General Counsel protect privilege when it matters
Privilege depends on substance, not labels. The choices that determine whether it can be maintained are made long before litigation.
Of the issues that General Counsel are expected to manage, Legal Professional Privilege (LPP) is the one where small mistakes may result in irreversible consequences. Documents shared with the wrong person. Advice circulated more widely than necessary. Mixed communications serving for both legal and non-legal purposes. Overuse of ‘privileged’ labels. Each of these can undermine a privilege claim months or years down the track, when the documents are sought in litigation or by a regulator.
LPP protects confidential communications or documents made for the dominant purpose of a lawyer providing legal advice, or for the provision of legal services such as legal representation in proceedings, or for use in existing or anticipated litigation. It may be lost by waiver, whether express or implied, through conduct inconsistent with maintaining confidentiality.
The practical work of protecting LPP sits in the day-to-day decisions about how legal advice is created, shared and stored. Circulation should be on a need-to-know basis. Particular caution should be exercised where the contents of legal advice is communicated to a third party, as that may amount to a waiver.
Legal advice should be clearly marked as 'confidential and subject to legal professional privilege' where appropriate. However, a document labelled 'privileged' that is in substance prepared for an operational, governance or public relations purpose, rather than for the dominant purpose of obtaining legal advice, may not be privileged simply because it is so labelled.
Where a communication contains both legal and non-legal content, segregating the two with clear headings, with the legal portion marked as confidential and subject to LPP, makes any later claim cleaner to defend.
Third-party experts engaged to prepare reports require careful management. The circumstances surrounding the commissioning of the report as well as events leading up to the creation of the report, may impact whether protection under LPP attaches at all.
Staff education matters more than it sounds. Privilege risks, including waiver, overuse of labels, and informal disclosure of advice to non-lawyers, more often originate from staff who are unfamiliar with the rules. A short, recurring briefing for legal-adjacent functions is a cost effective way to help reduce the most common errors.
AI tools require particular attention. The convenience of asking an AI assistant to summarise advice, draft correspondence around a legal issue, or process documents that include legal commentary, can compromise both confidentiality and privilege if the tool is not deployed within a properly controlled environment. It is important to ensure your AI governance frameworks are in place ahead of rolling out these tools, particularly given the pace at which these tools are constantly evolving.
Privilege rarely fails because of a single bad decision in the heat of litigation. It fails because the process had slowly gone off track over the months and years prior, when the safeguards were not properly followed.
This article summarises one chapter of Ironbridge Legal's General Counsel Guide. The full guide covers privilege, regulatory investigations, dispute resolution pathways, settlement offers and costs strategy, stakeholder communications, litigation funding and insurance, and the policies that build dispute readiness. Download your copy.
