WHILE A PRACTISING certificate may be useful to in-house legal advisers, the failure to have one will not automatically void legal professional privilege, according to the ACT Court of Appeal.
Government in-house legal counsel breathed a sigh of relief recently when the Court established exactly when their legal advice is privileged. In Commonwealth of Australia v Vance  ACTCA 35 (23 August 2005), the Court assessed whether certain documents prepared by legal advisers in the Department of Defence could be subject to a claim of legal professional privilege.
The appeal of the ACT Supreme Court decision in Commonwealth of Australian and Air Marshall Errol John McCormack, means that in-house advisers who are admitted as lawyers, but who do not hold a practising certificate, are able to claim legal professional privilege over legal advice that they have created.
Justices Gray, Connolly and Tamberlin had to determine whether Justice Crispin had erred in introducing the requirement that a professional privilege claim could only be brought where a document was written by a person holding a practising certificate.