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Preserving legal privilege during Covid-19

Monica Kelly (Photograph supplied)

In response to the ongoing threat of Covid-19, many companies have maintained their work from home regime in an effort to safeguard the health and safety of their employees.

This new normal has forced many to adapt to the virtual side of business practices and navigate the ever changing operational challenges involved in working remotely.

While remote working brings with it a more informal working environment, it is imperative that office standards and protocols are not dispensed with, particularly as it relates to the handling of privileged information.

Legal professional privilege is a fundamental legal concept that protects certain types of confidential communications from disclosure to third parties, including the court.

This right is designed to encourage clients to openly communicate with their lawyers without fear that their communications will be disclosed to a third party without their consent.

There are two main types of privilege – legal advice privilege and litigation privilege. This column focuses on the former.

Legal advice privilege is a core legal principle that protects confidential communications between lawyers and their clients that are exchanged for the dominant purpose of giving and receiving legal advice.

This privilege belongs to the client and the lawyer is under a legal obligation to preserve this right unless waived by their client.

It is important to note that not all communications between a lawyer and their client attract this legal privilege; therefore, it should not be assumed that all communications will be protected from disclosure.

It is a question of substance, rather than form, whether communication between lawyer and client falls within the ambit of legal advice privilege.

As such, merely labelling a document as “privileged and confidential” or sharing it with a lawyer will not make an unprivileged document privileged.

In order for information to attract legal advice privilege there must be an actual communication in written or oral form exchanged between a qualified lawyer acting in that capacity and an authorised client present in the communications.

For this purpose, an “authorised” client is an individual – or employee of a corporate client – who has been tasked with giving instructions and obtaining advice from a lawyer.

Further, providing or obtaining legal advice must be the dominant purpose of the communication.

Additionally, the communication must be confidential. Confidentiality is a condition precedent to a document or other form of communication attracting privilege.

As such, privilege cannot be claimed unless the communication is kept confidential. If the confidentiality element of a privileged document is lost, such document will no longer attract legal privilege.

Importantly, there are instances where legal privilege can be lost.

This may arise where the client expressly consents to waiving this right or impliedly does so by failing to keep legally privileged communications confidential, either in their entirety or in part, by referring to them in non-privileged communications with those who do not share the privilege.

Consequently, legal privilege can be compromised when privileged material is circulated without the appropriate safeguards.

Legal privilege can also be lost in circumstances where the substance of privileged communications is divulged to a third party in a manner inconsistent with the confidential nature of the legal advice.

Crucially, once legal privilege has been waived it cannot normally be reclaimed. It is therefore important to handle privileged materials carefully, particularly when contemplating whether and how they can be safely shared.

There are a number of useful measures that one can implement to minimise the risk of waiving privilege inadvertently and ensure that confidential material maintains its “privilege” status, some of which include:

• Ensure the necessary procedures are in place to safely and securely store and dispose of documents that contain privileged materials.

• Avoid distributing privileged documents widely. Instead, keenly review the recipient list and consider limiting the addressees to ensure the materials are only being circulated to the intended parties.

• Clearly label privileged material as “confidential and subject to legal advice privilege”. For further security, emphasise to the recipients that the document should be treated as confidential and should not be shared with others.

• When circulating privileged materials online, consider using a file sharing platform that uses end-to-end encryption. This form of distribution provides users with control over who can view their messages and files.

• When communicating on a call, over e-mail or other forms of communication, avoid mixing legal advice with commercial input. Instead, it is useful to make a clear distinction between matters relating to legal advice and non-legal discourse.

• In the event of uncertainty, obtain guidance from legal counsel on whether the relevant material can or should be disseminated to others.

As the threat of Covid-19 persists and as companies continue to work remotely to combat this threat, it is necessary to be especially vigilant when handling documents that attract legal privilege to ensure confidentiality is not lost and privilege is maintained.

In doing so, it is prudent to adhere to these and other practical precautions to preserve legal privilege during Covid-19.

Associate Monica Kelly is a member of the Corporate department at Appleby. A copy of this column can be obtained on the Appleby website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.

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Published June 17, 2021 at 7:55 am (Updated June 17, 2021 at 7:52 am)

Preserving legal privilege during Covid-19

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