24 November 2005
Key Points:
A recent appeal court decision has significant implications for in-house lawyers and legal officers in government departments and agencies.
In an age when government departments and agencies rely heavily on the services of their in-house legal officers or lawyers, a recent decision of the ACT Court of Appeal in Commonwealth v Vance [2005] ACTCA 35 provides some guidance in determining when legal professional privilege may attach to the advice provided by such officers, including those officers who do not hold current practising certificates.
Broadly speaking, if legal professional privilege can be claimed in relation to advice, then the person claiming the privilege can resist the production of documents which would reveal that advice. In essence, the Court of Appeal in Vance held that while the question of whether an in-house lawyer holds a current practising certificate is relevant to a determination of whether advice they give is privileged, it is not a prerequisite for attracting legal professional privilege.
Facts
Vance was seeking to challenge the termination of his employment in the Royal Australian Air Force. As part of those proceedings, Vance had sought the production of various documents (pursuant to the discovery process) which had been created by Defence Legal Officers (DLOs). The DLOs who had produced the documents in question were legally qualified and admitted to practice but they did not hold current practising certificates.
Justice Crispin held that the common law applied in determining whether privilege could be claimed in relation to the relevant documents, and that such privilege could only attach to advice if the lawyers providing that advice held a current practising certificate.
Court of Appeal decision
The Court of Appeal disagreed with the trial judge's conclusions. The Court of Appeal resolved that the test for whether documents are privileged from discovery in these proceedings was not the common law test but that laid down in the Commonwealth Evidence Act (because the ACT Supreme Court Rules specifically provided that the Evidence Act test (which applies to adducing evidence) also applies to the peripheral process of discovery by which parties disclose relevant documents to one another).
In essence, the relevant provisions of the Evidence Act provide that evidence is not to be adduced of confidential communications or documents which are made or prepared for the dominant purpose of the lawyer providing legal advice. The Act does not require that a lawyer hold a practising certificate. It does require that the communication over which privilege is claimed must be confidential and its dominant purpose must be to provide legal advice.
Ultimately, the Court resolved that, while possession of a current practising certificate is an important factor in determining whether an employed lawyer (in government service or not) is providing independent professional legal advice such that their advice would attract a claim for client legal privilege under the Evidence Act, it was wrong to hold that a practising certificate is a pre-condition for such a claim.
The Court of Appeal has said that the real test, as far as the Evidence Act is concerned, is whether there is sufficient evidence that the DLOs who produced the subject documents had appropriate professional independence to enable the characterisation of the documents in issue as legal advice. The concern is that, as employees, in-house advisers can be under more pressure from their clients and it is important to ensure that the nature of their employment does not impact upon the professional nature of their relationship with their client or the independence of the advice they give.
The Court of Appeal also recognised that in-house lawyers sometimes act in other capacities, so that not all advice provided by an in-house lawyer will attract professional legal privilege. Whether advice attracts privilege entails consideration of whether the advice was given within the solicitor-client relationship, ie. whether the primary object of the relationship was to obtain advice and assistance in relation to legal rights and obligations, which necessarily requires knowledge of the law. Advice on purely business matters, policy advice and other advisings in the course of an employee carrying out general duties of employment are not "legal advice" that attracts the privilege.
The Court of Appeal's decision is not the end of the line for this matter however because the Court of Appeal considered that it was not appropriate to determine whether the material in issue was privileged. Instead, it has remitted the matter back to the trial judge for further consideration in accordance with its reasons. Accordingly, the trial judge will now be required to determine, on admissible evidence, whether the DLOs who produced the documents in issue had the requisite degree of professional independence such as to enable the characterisation of the subject document as legal advice.
Finally, it is also worth noting that, although it was not necessary for the Court to resolve the position at common law, the Court suggested that the absence of a practising certificate may not be fatal to a claim for legal professional privilege at common law.
What are the implications for agencies?
There are three significant implications of this most recent decision on the question of privilege, namely:
For further information, please contact Caroline Bush and Xuelin Teo.
