Legal Privilege Advice
In general, all admissible and relevant communications in judicial proceedings must be disclosed, even if they are confidential. However, privileged evidence does not have to be disclosed, even if it is admissible and relevant. This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended and should not be construed as legal advice. The Evidence Act 1995 (Cth) and identical provisions of the Evidence Act 1995 in New South Wales and Tasmania now govern cases where privilege prevents the presentation of evidence in the course of court proceedings (as defined by proceedings bound by the Evidence Acts). New South Wales court decisions expand the definitions of the Evidence Act to include the discovery and inspection of documents. The right has been renamed by law to reflect the fact that it is a customer`s right. It is now the client`s legal privilege (as opposed to solicitor-client privilege). The courts view privilege as a “general substantive principle that plays an important role in the effective and efficient administration of justice by the courts”[5] and not as a mere rule of evidence. As such, it extends to all forms of mandatory disclosure, including search warrants. [6] [7] While Parliament may limit privilege, “the law should not pave the way for the legislature to limit privilege.” [8] The waters become murkier when the prospect is a commercial entity.
In the corporate context, solicitor-client privilege exists between external lawyers and the company. However, the exercise of this right by a corporation is necessarily more complex than when a person is involved, since a corporation is an artificial “person” created by law and can only act through a representative, including officers, directors and employees. The “control group” was defined by the courts to include employees who were in a position of control, allowing them to play a critical role in determining what actions the company would take after receiving legal advice. See, for example, City of Philadelphia v Westinghouse Elec. Corp., 210 F. Supp. 483, 485-86 (A.D. Pa. 1962). ↩ We recommend that you mark communications seeking legal advice from the OGC as “Solicitor-Client Communication – Privileged and Confidential”.
We recommend that you manage this communication in a separate file from other non-privileged files. A final consideration arises with regard to in-house counsel. Communication on corporate matters between a corporation`s in-house counsel and the corporation`s external counsel is normally subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because in-house counsel often wear multiple hats, courts find it difficult to apply privilege.17 The privilege would extend to all legal advice, but does not protect purely commercial communications.18 Problems arise when communications include both legal and business advice, and courts take different approaches to deciding that: whether or not the privilege should be applied. At the very least, it appears that the court will first try to determine what role the in-house lawyer plays within the company – that of a lawyer or that of a business manager. From there, many courts will review the content of the communication, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. The courts have been faced with the daunting task of determining when solicitor-client privilege applies when a company is the client. For years, the courts have used one of two “criteria” to reach this conclusion: the case test13 and the comparison group test.14 However, the current trend is to determine whether the issues addressed are covered by the employee`s duties and responsibilities. Exception for criminal offences or fraud. When a client seeks advice from a lawyer to help promote a crime or fraud, or to conceal the crime or fraud after it has been committed, communication is not privileged. However, if the client has committed a crime or fraud and then seeks the advice of a lawyer, these communications are preferred, unless the client intends to conceal the crime or fraud.
The confidentiality of communications between lawyers and their clients is protected by a rule known as solicitor-client privilege. This privilege is important because it allows clients to speak openly about their concerns and lawyers to provide legal advice in response to those requests. As a general rule, courts cannot require a party to disclose communications that are subject to solicitor-client privilege. Privilege protects emails, writings, personal messages, telephones, letters or emails. The question of waiver most often arises when a communication is observed by a third party or when the customer does not intend the communication to be confidential. The mere presence of a third party is likely to prevent the creation of professional secrecy. Parties wishing to protect the advice of their internal or external counsel: (a) should carefully consider whether the communication or meeting of LAPs should be protected; (b) to the extent possible or possible, do not confuse commercial and legal issues in e-mails with more than one addressee or, if this is not possible, the sender should ensure that it is clearly stated that the primary purpose of e-mails with multiple recipients is to provide or obtain legal advice; (c) consider that emails and attachments should be reviewed separately for the purposes of the LAP; and (d) ensure that only employees specifically hired to provide legal advice on behalf of the client contact lawyers. If you have any questions about the solicitor-client service, please contact the OGC helpdesk at [email protected] or call 202-885-3285 to speak with an OGC lawyer. In R.
v. McClure [2001] 1 S.C.R. 445, the Court held that solicitor-client privilege was a principle of fundamental justice and indicated that it could be protected by section 7 of the Charter. An ill-conceived series of FOIA cases from the United States Court of Appeals for the District of Columbia Circuit has caused significant confusion as to whether solicitor-client privilege protects solicitor-client communications when the details of the communication are confidential but the underlying subject matter is known to an external third party. In the Mead Data case, the first of these cases, the Washington Circuit held that communication between the Air Force and its lawyer regarding offers to negotiate made by and received by an opposing party was not protected by solicitor-client privilege, since the content of the offers was of course also known to the opposing party.
