There is no doubt that solicitor-client privilege applies if legal advice is given by in-house counsel in the same manner as advice given by outside legal counsel. v. the purpose of the communication must be identified and “if the primary purpose of the communication is essentially to carry out instructions to the lawyer” or if the primary purpose is to provide legal advice, then LAP applies; Iv. In an email with multiple recipients requesting both legal advice and non-legal advice or observations, “those sent and sent by counsel are subject to solicitor-client privilege: otherwise, they will not be privileged, unless the real (primary) purpose of a particular email to or from non-lawyers is to engage the lawyer”; These differences between in-house and external counsel include: While each jurisdiction has its own definitions and rules of privilege, solicitor-client privilege generally protects confidential communications between a lawyer and a client, including a client`s representative, for the purpose of providing professional legal services. Accountants – Many jurisdictions do not recognize accounting privilege, including federal courts, the District of Columbia, and states such as California, Texas, New York, and Virginia. Nevertheless, communication between in-house legal counsel and an accountant may be preferred if accounting services allow for the provision of legal services. In this context, however, the line between legal services and business objectives is often difficult to draw. Privilege is a substantive rule of law and not merely a rule of evidence (see Attorney-General (NT) v Mauritius (1986) 161 CLR 475-490, per Deane J.). Common interests – In the course of litigation, counsel for parties with common interests may have confidential communications on matters of common interest. The existence of this “common interest” may extend the privilege of isolating communications from disclosure. Similarly, in commercial transactions, some courts recognize a common interest privilege that would protect communications between corporate lawyers if the purpose of the disclosure is to promote an almost identical legal interest of the parties, but other courts do not.

Appropriate documentation may support the assertion of a privilege of common interest if it is subsequently challenged. This is largely due to the fact that in-house lawyers have to perform both legal and commercial functions, and not just legal functions. A common example is when the general counsel of a large company is also secretary of the company or responsible for risk/compliance. Of course, if the in-house lawyer is the most experienced lawyer employed by the organization (for example, the general counsel), this is not possible. In these circumstances, the above aspects (such as employment programmes and independence policies) may become even more important. Under the common law, Australia`s primary decision to waive solicitor-client privilege is Mann v Carnell (1999) 201 CLR 1. In the uniform laws on evidence, waiver is governed by section 122. The appeal was dismissed by the court, with Hickinbottom J. upholding the trial judge`s approach. However, the judgment clarified certain elements of the dominant purpose test. The multi-stakeholder communication guide is particularly useful for in-house lawyers, who often take on a dual role as legal and commercial advisors.

Hickinbottom J. noted: It is beyond the scope of this section to cover the range of privilege regimes that may apply in an increasingly globalized trading environment. However, the international nature of many companies means that a number of lien regulations may be applicable. This article provides some guidelines for best practice in English law. While many of these suggestions are of broader application, it is important for in-house counsel to remain aware of the scope and application of privileges in other jurisdictions that may be relevant to their own circumstances and may limit the protections available to them and their organization. Consistent with the above position, the two types of solicitor-client privilege are commonly referred to as “legal privilege” (see section 118 of the Code of Evidence) and “litigation privilege” (referred to in section 119 of the Evidence Acts). In court proceedings, the disclosure of documents is governed by the relevant rules of civil procedure of that jurisdiction. In common law jurisdictions, parties are generally required to provide the other party and the court with a list of the documents that are under the controlling party, as well as a brief description of each document. In-house counsel often play a key role in helping outside counsel compile and catalogue these documents. It is important to maintain the status of all privileged documents to avoid the risk of accidental disclosure. Document disclosure procedures may be less clear in the context of arbitration, especially if the parties are from different jurisdictions.

Dispute resolution clauses rarely provide for the applicable privilege regime, and arbitral tribunals often make disclosure by reference to “soft law” instruments such as the International Bar Association`s Taking of Evidence Rules 2020. Factors that a court may consider when deciding whether or not to order disclosure of documents include the need to maintain the confidentiality of a document prepared in the context of and for the purpose of obtaining legal advice or seeking legal information or for the purpose of negotiating a settlement, and the expectations of the parties and their advisors at that time: at which the privilege would have arisen; any waiver and the need to preserve fairness and equality between the parties. It is therefore important for in-house counsel to consider these factors when working with outside counsel in a dispute. In this class action lawsuit, plaintiffs have filed thousands of lawsuits against pharmaceutical company Gilead Sciences, Inc. (Gilead).iv The applicants allege that Gilead intentionally delayed the development of safer HIV drugs in order to maximize its monopoly in the HIV drug market.v The applicants requested the submission of financial documents referred to as “Gilead`s development committee or project team documents” and not redacted versions of documents produced by a Gilead attorney.vi, Stating Redacted information on patent expiry dates and patent exclusivity periods constituted legal advice from in-house counsel.vii The plaintiffs argued that the advice was primarily business-oriented and therefore not protected.viii A draft legal brief sent to a client for comment. Usefully, there are practical measures that can be implemented to help maintain a claim of privilege over communication by in-house counsel. Solicitor-client privilege extends to clients, agents or representatives of clients, lawyers and agents or representatives of lawyers. Voluntary disclosure to persons outside this group usually waives a privilege.

However, not all communications with third parties will sacrifice privileges, so it`s important to understand when inside information can and cannot be shared with third parties. An email from a non-legal advisor to a third party that attaches a press release and copies in-house counsel. Communication is not privileged simply because an in-house lawyer is copied from it. Be careful what you say, no matter who the audience is. Procedural privilege is broader and includes communication between the client, his or her lawyers and third parties for the sole or primary purposes of an ongoing or reasonably contemplated legal proceeding. There must be a real likelihood and not just the possibility of such a procedure. The proceedings must also be adversarial and not inquisitorial or investigational. Proceedings in which judicial functions are exercised by a court are likely to fall into this category.

However, the situation is less clear with respect to other tribunals, public inquiries or inquiries required by law. For example, an investigation that may result in follow-up requests may give rise to litigation privilege, even if it is an investigation. On the other hand, procedural privilege is unlikely to arise when facts are gathered. d. the approach of waiving the privilege of security in other documents. Mergers and Acquisitions – In the event of a merger or acquisition, unless otherwise agreed, the lien is transferred to the surviving or acquiring company. In order to avoid the cumbersome disclosure of privileged information, including about the negotiation of the acquisition, privilege is addressed in the transaction documents by (1) defining the scope of attorneys` representation; (2) waiver of the obligation to disclose inside information to the buyer; and (3) an agreement that the seller`s lien will not pass to the buyer. The contents of this publication are provided for reference purposes only and may not be current at the time of access to this publication. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your particular situation should always be obtained separately before taking any action on the basis of this publication. Multiple recipient notifications sent simultaneously to different persons for notice or comment are considered separate communications between the sender and the individual recipients; It is clear from the foregoing that, with respect to both types of professional secrecy, there are 3 elements necessary for the application of the privilege: i.