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Legal Professional Privilege

Legal Professional Privilege is a rule of law that protects the confidentiality of certain communications between clients and their lawyers.

Legal Professional Privilege can also be between clients or their lawyers and a third party. Privilege attaches to communications that are made for the dominant purpose of giving or obtaining legal advice; or for use in existing or reasonably anticipated legal proceedings. Communications that are privileged cannot be compelled to be disclosed (whether as part of court proceedings or under an FOI request).

Documents over which the University will commonly seek to claim privilege are: legal advice from the University’s in-house counsel or external lawyers, and memos or emails from University officers to in-house or external counsel seeking legal advice. Simply marking a document as “privileged” does not necessarily make it so but if you do see a document marked as “privileged”, you should treat it as such. For more information about the application of Legal Professional Privilege, please refer to the Legal Professional Privilege Annexure.

Privilege can be lost or waived if the substance of the communication is disclosed to third parties or even more widely within the University. Forwarding legal advice to a person external to the University or even declaring that “we have had legal advice that X is the case” will result in privilege being waived. Cutting and pasting, or paraphrasing legal advice into an internal memo or email may also cause privilege to be lost. Therefore, when dealing with matters that are potentially legally sensitive or litigious it is important to adhere to the Communications Protocol or seek advice from a Legal Counsel to ensure privilege is maintained.

 

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