We have been working with an agency recently and the issue of stakeholders claiming Legal Professional Privilege (LPP) has arisen in many of their recent investigations. So what is it and how is it navigated?
Legal Professional Privilege is a legal principle protecting confidential communications between a lawyer and their client. LPP is also called Client Legal Privilege in the Evidence Act 1995 (NSW) (see 3.10 Privileges) because the privilege and the ability to waive it actually belongs to the client. The confidential communications include giving or receiving legal advice on actual, pending or anticipated legal proceedings.
LPP is not limited to court proceedings, it also applies where legislation gives government investigators or inspectors powers to access or require documents and information as part of investigations or enforcement procedures. It can be a confusing area as ambit claims are often made relating to documents that may not have been prepared and communicated in direct response to the current proceedings.
The basis of LPP is to protect and preserve a person’s rights under law allowing the client freedom of communication with their lawyer about their legal rights and actions that can be taken to defend or enforce those rights. These confidential communications do not have to be disclosed by the client and cannot be disclosed by the lawyer without their client’s consent. A person may elect to waive LPP. This can be an express or implied disclosure of the substance of the legal advice or content of a document.
Some examples to be aware of that may be privileged:
· A letter from an individual to their lawyer asking for legal advice about an interview or investigation
· An email communication between two lawyers acting for the same client discussing a strategy in relation to an investigation
If a claim for LPP is raised, only a court can determine whether the information or document is actually subject to privilege.
What should Investigators do where a claim for LPP is made on documents they are seeking?
Claims for LPP may be made, particularly where an organisation is conducting their own internal review of an incident you may be investigating.
As an investigator if a claim for LPP is made, note down what document or communication the claim is being made on, make a record of the claim and collect enough information to allow an informed assessment about whether to challenge or accept the claim.
Should you wish to find out more about investigation training please contact us.
