Legal Advice Privilege Explained

Have you ever dealt with a solicitor on either a business or personal matter?

If you have, two terms you might have heard thrown around are solicitor/client confidentiality and legal advice privilege.

These two terms are often mistaken as meaning the same thing, when in fact they are different legal principles.

  •  Solicitor/client confidentiality is a fiduciary duty the solicitor owes to the client to keep the client’s affairs confidential.
  • Legal advice privilege belongs to the client and protects confidential communications between a client and a professional legal adviser, which relate to the obtaining of legal advice.

What is legal professional privilege then?

Legal professional privilege encompasses the two main categories of legal privilege attaching to a relationship with a legal professional, which are:

  • Legal advice privilege and
  • Litigation privilege

What is legal advice privilege?

As stated above, it is a legal right enjoyed by clients, which covers confidential communications relating to legal advice between a legal professional and their client.

It also allows clients to provide information freely to their legal adviser in the knowledge that all such information can only be revealed with their consent.  

How does litigation privilege differ from legal advice privilege?

Litigation privilege can exist outside the solicitor/client relationship and attaches to documents between clients, legal professionals or other third parties that are prepared in contemplation of litigation.

Litigation privilege may allow a client to refuse to disclose confidential documents and communications which were prepared for the dominant purpose of providing advice on actual or anticipated litigation.

Advice from HR consultants enjoys protection of litigation privilege

A recent Circuit Court decision examined how advice by a HR consultant given to their client attracts litigation privilege.

In a case in which Peninsula represented the employer, the Court found that all significant communications between the employer and Peninsula both before and after the employee filed his claim were privileged.

Peninsula advice protected by litigation privilege

The Circuit Court decision to extend the scope of litigation privilege to advice given by HR consultants both before and after a claim is lodged, is a welcome clarification of the law.

The decision also underlines the value of HR consultancy advice in contentious employment matters.

Need help with a difficult workplace scenario?

Outsourcing your HR may be the answer. Contact Peninsula’s expert employment law advisors on 1890 252 923 for more information.

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