Litigation and Alternative Dispute Resolution

Contact: Andrew Shute and Matthew Payten, Carter Newell (Queensland, Australia)

Legal professional privilege, also known as client legal privilege, is an important tool to facilitate frank legal advice between lawyer and client, going beyond a mere rule of evidence to be considered a ‘fundamental condition on which the administration of justice as a whole rests’.¹

The privilege arises where a communication or document is confidential and is made or brought into existence for the dominant purpose of providing legal advice, or to conduct or aid in the conduct of litigation (whether actual or reasonably anticipated). It is well accepted that privilege may apply to legal communication involving an employed lawyer. The in-house lawyer need not hold a practicing certificate in the jurisdiction in which the claim for privilege is made.² However, following references to ‘independence’ by the High Court in its seminal decision,³ it has often been held that to substantiate a claim of privilege an in-house counsel must ‘act independently of any pressure from his employer’, without influence or loyalty and with ‘professional detachment’.⁴

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