Client legal privilege issues in managing and investigating safety incidents — Part 1

Part 1 – Introduction
Part 2 – Potential issues and solutions
Part 3 – Potential issues and solutions (continued)

The law surrounding client legal privilege has recently changed, highlighting the need to re-examine its use in relation to managing and investigating safety incidents.

Immediately after a safety incident occurs, the organisation and its management typically focus on supporting affected employees and understanding how to prevent the incident happening again.

Raising issues about maintaining the confidential and privileged nature of communications at this point in time is often not welcome because of the perception that these issues are inconsistent with the expression of remorse and learning from the incident. This perception is not accurate.

The rationale of client legal privilege is to encourage the provision of frank and full legal advice. The provision of full and frank advice about any breach of occupational, health and safety (OHS) legislation enables the organisation to understand and therefore learn from that breach. Without the assurance that such communications will remain confidential, there is a risk that organisations and individuals would be less likely to share information and obtain candid and comprehensive advice.

What is client legal privilege and when does it apply?

Client legal privilege applies to confidential communications between a client and the client’s legal adviser for the dominant purposes of giving or receiving legal advice or for use in existing or anticipated litigation. Privilege can also extend to related communications for the same purpose; for example, communications between legal advisers of the client and communications with third parties with a view to obtaining evidence.

As the name suggests, the right to claim privilege belongs to the client who receives the confidential legal advice, not the lawyer who provides it. Client legal privilege can be lost or waived expressly or by implication. Implied waiver happens when a party’s conduct is inconsistent with the maintenance of confidentiality which the privilege is intended to protect.

Potential issues 

1. Issues that may arise if no lawyers are involved in the management and investigation of a safety incident.

If no lawyers are involved in the investigation and/or management of a safety incident there is no possibility that privilege will attach to any communication. As such, so far as the law requires, anything uncovered during the investigation must be provided to the relevant OH&S authority if requested.

2. Issues concerning in-house counsel giving advice in relation to safety incident management and investigation.

A communication between in-house counsel and a safety manager regarding advice in relation to the management and investigation of a safety incident may or may not be privileged. The difficulty with claiming privilege over communications with in-house counsel (as opposed to external lawyers) arises because often in-house lawyers carry out commercial, as well as legal, functions in the workplace and participate in commercial decision making. The two main issues to consider when determining whether a communication with in-house counsel is privileged are:

(a) Was the advice given by the in-house lawyer in their capacity as a lawyer? The in-house lawyer must have been acting in a legal context or role when providing the advice rather than, for example, in a management capacity; and

(b) Was the advice independent? An in-house lawyer does not necessarily lack the independence needed for client legal privilege to attach to their advice. However, for advice to be independent, the relationship between an in-house lawyer and their employer must be one of professional detachment where the personal loyalties, duties and interests of the in-house lawyer do not affect the legal advice given. Generally, in-house lawyers are more likely to be considered to be giving independent advice where:

• reporting lines reflect independence;
• terms of employment reflect independence;
• the lawyer is qualified and admitted to practice law (ie, the lawyer holds a current practising certificate);
• the lawyer’s job title identifies the person as legal counsel; and
• the lawyer is not a director, manager or executive of the company, or a partner in the partnership.

*Katherine Morris is a senior associate at Corrs Chambers Westgarth.

In next month’s Safety Solutions eNewsletter, we will explore additional scenarios of client legal privilege, with recommendations on addressing them.