Legal Professional Privilege in Focus
Not all communications are fair game in legal proceedings. Many are protected by a concept known as legal professional privilege (LPP). LPP allows parties to seek and consider legal advice without fear of disclosure, but there are also strict rules about when LPP exists, and when it is waived. This has been brought sharply into focus in a recent ruling by the Fair Work Commission (FWC).

What is LPP?

In litigation, the legal system requires disclosure of communications by all parties where the communications are relevant to the action. This assists the parties to prepare the matter, and the court to adjudicate.

The exception to this rule is LPP.

LPP protects certain communications from disclosure when they have been created to seek or provide legal advice. For example, a letter of advice from a solicitor to a client is subject to LPP because its purpose is to provide legal advice. In court proceedings, the letter does not need to be disclosed to the court or the opposing party; it remains confidential.

LPP exists so that clients can fully discuss matters with their legal advisors without fear of those matters later being disclosed to other parties.

The case of  Kirkman v DP World Melbourne Ltd demonstrates how LPP operates, and when it can be used.

LPP in the case of Kirkman

Kirkman was an employee of DP World Melbourne Ltd (DP). Following an allegation of bullying, DP engaged an independent investigator who provided a report. The report was marked “privileged and confidential” and DP used the report to put allegations to Kirkman.

After Kirkman’s employment was terminated, he took action for unfair dismissal and sought disclosure of the report. The FWC refused. Kirkman appealed the decision.

On appeal, DP argued that the report was subject to LPP because it had been created for legal advice. Kirkman argued that DP had waived LPP by putting the allegations to him.

The FWC found that LPP applied to the report because it was created only for legal advice. It was marked “privileged and confidential” which reinforced that conclusion. The FWC noted that waiver could be express or implied and would occur where the conduct of the party was inconsistent with confidentiality requirements.

The purpose of the partial disclosure was to provide Kirkman with the opportunity to respond to the allegations against him, which would allow DP to reach a considered conclusion. Waiver had not occurred.

Had Kirkman been shown the report, no doubt LPP would have been waived because DP would have acted in a manner inconsistent with the confidentiality it was claiming.

Lessons for employers

This case is a reminder of the care that must be taken when a matter is being investigated. Even before litigation is contemplated, documents can be used or created for which LPP may later be claimed. It is important to remember that:

  • LPP documents should always be marked “strictly private and confidential” or “privileged” or similar.
  • LPP documents should only be circulated to those who are required to see them. 
  • Any expert or other third party must be reminded that their expertise is being sought for the purpose of legal advice. 

LPP and waiver issues can be difficult. There is not just litigation to consider, but investigations and advice sought well before a matter becomes litigious. Using an experienced workplace investigator early on in the matter has many benefits.

Investigators are well versed in LPP and consider LPP implications from the outset of a matter. This can often be the difference in successfully or unsuccessfully litigating a matter.

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