Black Box Tips: Maintaining Privilege Over Legal Advice Within An Organization | Dentons

This week Lisa McCreath takes a look at maintaining privilege over legal advice within an organization

Life’s greatest learning opportunities often come from things that go wrong. Only businesses that are properly vested in learning from mistakes are truly positioned to maximize their potential.

The aviation industry has this down to a fine art. When things go wrong, the black box flight recorder ensures that their errors are “data rich”. That industry’s ability to learn from its mistakes has taken it from one of the most dangerous forms of transport to one of the safest.

The law is no different. As part of the world’s largest law firm, our disputes team is also “data rich”: so here we use our knowledge of why things go wrong to help you to either avoid disputes in the first place, or to identify opportunities for fighting your client’s corners.

Maintaining privilege over legal advice within an organization

Maintaining privilege over legal advice provided within an organization is challenging, particularly when electronic forms of communication enable easy and rapid dissemination of information.

The following practical steps need to be considered.

  1. Is the communication privileged? The overarching principle is that confidential communications between client and solicitor for the purpose of obtaining legal advice are privileged. Being clear on what documents/communications are privileged is the starting point. In summary:
    • Legal advice privileges protects communications between lawyers and their client whereby legal advice is sought and given (in contentious and non-contentious matters). The client will generally be the individual or the core team within the business responsible for giving instructions and is authorized (expressly or impliedly) to obtain legal advice on a given issue.
    • Litigation privileges protects confidential communications between lawyers, clients and third parties created for the dominant purpose of existing or reasonably contemplated litigation.
  2. Mark all privileged communications as “legally privileged and confidential”. Although not conclusive in determining whether a particular communication is privileged, implementing a labeling convention assists in identifying privileged content and alerts recipients to the confidential nature of the communication.
  3. Store privileged material separately to non-privileged material. Consider whether it would be better to create two documents/lines of communication, one of which is clearly privileged and other for purely commercial/administrative matters. These communications should be stored separately or encrypted to safeguard them from forwards communication.
  4. Avoid unnecessary/inadvertent dissemination of privileged information. Legal advice should be shared on a strictly need-to-know basis (both internally and externally). In the event advice needs to be shared outside the client team (for example, to a parent company, insurer or accountant), specific advice should be taken to safeguard privilege.
  5. Retain control over information gathering and document creation. In particular, employees who do not form part of the client team should not create reports or documents relevant to the advice, but may provide factual material to the client team.
  6. Finally, choose your language very carefully if there is doubt over the dominant purpose of a communication. Unless you are certain that privilege will apply to the communication or document being prepared, avoid expressing views on the client’s position and keep written communications as factual as possible.

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