Legal Professional Privilege

What is Legal Professional Privilege?

Legal professional privilege (LPP) protects certain communications from mandatory disclosure.

LPP will apply to a confidential communication, whether oral or in writing, passing between:

  • a UNE staff member and UNE Legal Services; or
  • a UNE staff member and an external legal firm engaged by UNE;

which came into existence for the dominant purpose of:

  • legal advice – the giving or receiving of legal advice or the provision of legal services; or
  • litigation – being used in actual litigation, or litigation reasonably contemplated by the client at the time of the communication;

for UNE-related matters.

Confidentiality is paramount

Once privilege applies to a document, it is crucial not to do anything inconsistent with the confidentiality of the document, as this could waive privilege.  LPP attaches only to communications made in confidence. The communication must begin and remain a confidential communication.

How can LPP be lost?

LPP will be lost if it is waived. Waiver commonly occurs where a UNE staff member provides or forwards all or part of, paraphrases or refers to a confidential communication from or to UNE Legal Services with someone outside of UNE.  Waiver can be express or implied:

  • Express waiver involves the disclosure to a third party of the actual confidential document or communication.
  • Implied waiver occurs by referring to part, or all, of the privileged document or communication in a non-confidential context – even referring to the gist of the advice could amount to waiver, for instance by stating that the person is acting in accordance with legal advice.

Once LPP is waived, it is waived for all purposes. This means that UNE cannot ever claim LPP over the document or communication again.

LPP is most commonly waived by UNE staff when they forward an email chain between the UNE staff member and UNE Legal Services to the supplier or other party during contract negotiations.

What are the consequences if LPP is lost?

Documents or communications which are subject to LPP often contain confidential and sensitive UNE information, which could include financial information, personal and health information of individuals, UNE strategic considerations, or unfounded allegations about individuals.  Once LPP is lost over these documents or communications and they are provided to someone outside of UNE, they are in the public domain and may be obtained by a third party under a GIPA application.