Legal professional privilege – Queensland Government in-house lawyers

1. The following are some practical tips to determine if legal professional privilege (LPP) will apply to the work produced by in-house lawyers in Queensland Government agencies. There is an overarching theme of independence of the lawyer. There are also a couple of tips for lawyers to work successfully in government.

2.  What is Legal Professional Privilege?

Put simply, LPP means a person (that is, the client who owns the LPP) can refuse to produce a document if the document constitutes independent legal advice. There is no cause of action associated with it. It just means the contents of the document are confidential and the lawyer or client can refuse to produce it in the course of any court proceedings and pre-trial process such as discovery of documents and also in administrative processes, such as an RTI application. G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 7^th ed, 2021) 412 [11.175] stated:

‘Fundamentally it is the client who is entitled to claim privilege, as it is the client’s interests (as well as the broader public interest) that the privilege is designed to protect. Yet it is usually the lawyer who claims the privilege on the client’s behalf as the lawyer is in the best position to determine those communications covered by the privilege … A lawyer’s duty is to ensure that a valid claim for privilege is not lost and so must ensure that only non-privileged communications are disclosed on compulsory process. A breach of this duty confers on a client a right of action against the lawyer, in tort or contract.’

3.  For LPP to attach to an oral statement, written document (which includes an email) or a voice/video recording, the following must apply –

1. the communication must be confidential; and
2. the communication with the client must be in the lawyer’s professional capacity as a legal adviser; and
3. the lawyer must be admitted to practice; and
4. the lawyer must be independent.

4.  To attract the privilege, the ‘dominant purpose’ of the communication must be to provide or obtain legal advice or for use in anticipated or existing litigation (Esso v Federal Commissioner of Taxation (1999) 201 CLR 49). ‘Dominant’ means the ruling, prevailing, or most influential purpose. That is, it must be the main purpose of the communication. It does not have to be the ‘sole’ purpose of the communication. However, where a document has two or more purposes of equal weight and importance, LPP will not attach to the communication as a whole. For example, if a document contains a mixture of equal parts of legal and policy advice, it may be difficult to determine the dominant purpose of the document. It would be safer to attach the legal advice to the document and not refer to its contents in the document.

5.  A lawyer alone cannot bring into existence the relationship of lawyer and client. The request for legal advice/representation, must come from the client.

6.  To specifically consider whether LPP will apply to in-house legal services provided by a Queensland Government agency, it is relevant to look at the Legal Services Branch and also the lawyers who work in an operational/business unit within a department which is separate to the Legal Services Branch. To decide if LPP could apply to their work, it is relevant to answer the following –

1. Is the person employed as a legal officer? For example, consider the position description applicable for the role. Is it a legal officer role?
2. Is the person working under the supervision of the head of the department’s Legal Services Branch?
3. Does the person hold a practising certificate? A practising certificate is not necessary for a government legal officer. In Aquila Coal v Bowen Central Coal [2013] QSC 82 [21], Boddice J held that LPP still applied to a communication between a client and a lawyer who was admitted to practice, but who did not hold an Australian practising certificate.
4. Is the person a ‘government legal officer’ under the Legal Profession Act 2007? A government legal officer is ‘engaged in government work’ when they are ‘engaged in legal practice in the course of the officer’s duties for the entity in relation to which the person is an employee’ (Legal Profession Act, s 12.)

7. It is generally going to be easier to establish that LPP attaches to an advice from a legal officer in the Legal Services Branch in a department than from a person who is working in an operational/business unit or in a region as a general adviser and who does not report to the head of the department’s Legal Services Branch.

8.  Is the sole function of the legal officer to provide legal advice and assistance? Is it their duty to provide independent legal advice on legal matters? There may be subtle pressure on an in-house lawyer in an operational/business unit to tailor advice to meet policy demands. They must resist the pressure and remain independent given their first duty is to the law which includes to provide independent legal advice without compromise. It can be difficult to establish the necessary independence of the legal officer if the person answers directly for the work they produce to the person who has requested the advice. Advice prepared subject to direction as to its contents or conclusions by a person who is not a lawyer will not be privileged. A question to consider is whether a more senior person who the lawyer reports to and who is not a lawyer themselves has changed the effect of the legal advice? If the answer is ‘yes’, this is not independent legal advice and LPP will not attach to it.

9.  It is important to ensure the concept of LPP is clearly understood within the department/agency so that staff do not inadvertently waive LPP. It is likely to assist if the staff understand the ethical obligations on lawyers. For example, see rule 4 of the Australian Solicitors Conduct Rules 2012 (Qld) (ASCR).  A lawyer’s duty to the court and to the administration of justice is paramount and prevails to the extent of inconsistency with any other duty (ASCR, rule 3.1). Lawyers must also avoid any compromise to their integrity and professional independence (ASCR, rule 4.1.4). Ensuring staff understand these ethical obligations may help to prevent misunderstandings between staff who may perceive in-house lawyers as blocking progress on developments for the department or being inflexible in changing their advice on policy grounds.

10.  Not all work done by a government legal officer will attract the solicitor/client privilege of LPP. For example, the following would be unlikely to attract LPP –

1. a government legal officer who works as a member of a departmental strategic or operational committee; and
2. a government legal officer who has spent years working in a department may be called upon to provide policy advice that has nothing to do with their legal training or expertise but draws on their departmental ‘know how’.

11.  Recommendations:

The following are some suggested steps to take to ensure LPP attaches to in-house legal advice and representation –

1. Lawyers should be under the direct supervision of the head of the Legal Services Branch;
2. Lawyers should report to the head of the Legal Services Branch as to their workload and work content and ensure that their advice work is supervised by the head of the Legal Services Branch;
3. Lawyers working in operational/business units must be supervised by the head of the Legal Services Branch when providing legal advice;
4. A statement or instruction is issued by the Director-General and brought to the attention of all staff to the effect that –
   1. lawyers in the Legal Services Branch provide advice that will not be subject to direction or alteration by non-lawyers;
   2. lawyers in the Legal Services Branch provide independent advice and do not alter legal views to meet policy or administrative objectives;
5. Ideally, the head of the Legal Services Branch should report directly to the Director-General. This may help in demonstrating the requisite independence from the employer, as it avoids the perception of interference that could arise where the lawyer reports up through a hierarchical system. Although they report to the Director-General, the provision of legal services is professionally autonomous. See: Seven Network Ltd & Anor v News Ltd (2005) 225 ALR 672.

If you have any queries arising from this article, please contact Public Law Deputy Crown Solicitor, Karen Watson on 3031 5810 or at karen.watson@crownlaw.qld.gov.au.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}