Client legal privilege issues in managing and investigating safety incidents — Part 2

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

3. Issues concerning lawyers giving advice in relation to safety incident management and investigation

a) Purpose of the safety incident investigation

Privilege issues may surface where lawyers are commissioned to investigate and draft a report concerning a safety incident. Usually such investigations and reports have multiple purposes, such as:

• advising as to the client’s OHS liability;
• determining the cause of the safety incident; and
• identifying corrective actions to ensure that similar incidents do not happen again.

When such legal and non-legal purposes are bundled up together in one communication, it may be difficult to prove at a later stage that the dominant purpose of the communication was for providing legal advice rather than for a client’s own operational reasons. If it cannot be proved that the dominant purpose was the provision of legal advice, the advice will not be privileged.

How can you avoid this pitfall? To minimise the above risks, the following actions are recommended:

• make it clear on the face of the advice that the advice has been sought and is being provided for the purpose of making the organisation aware of its legal exposure;
• if an expert report is required, lawyers should commission the report rather than yourself as safety manager or in-house counsel;
• make a file note of the thought processes of the person commissioning the investigation or report regarding what they considered to be the dominant purpose of that communication and why; and
• take steps to avoid waiving privilege over the communication. For example, do not show the report or refer any report to a third party.

b) Internal investigation systems

Many organisations accept that their internal investigation system, which is used for all safety incidents and usually easily accessible by all employees via intranet, was not created for the purpose of legal advice or anticipated litigation and therefore is not privileged. In this situation, any information collected during the internal investigation process will not be privileged.

What happens if you follow the internal investigation system as well as seek legal advice? Problems can and often do occur where lawyers are commissioned to provide legal advice regarding an organisation’s OHS liability using information given to them which was obtained through a prior internal investigation into the safety incident. While the lawyers were commissioned for the purpose of providing legal advice, it cannot be said that the internal investigation was similarly commissioned for the same purpose. The dominant purpose of an internal safety incident investigation may be unclear as it may be for an organisation’s own operational reasons rather than for a legal purpose. As such, the legal advice and any material (such as witness statements) which the lawyers based their advice upon will not be privileged.

How can you avoid this pitfall? Two discrete investigation systems must be established to ensure that the purposes of each investigation are clear, namely:

• the normal, internal investigation system whose purpose is for operational reasons, such as identifying the cause of the safety incident. Privilege would not attach to this system; and
• an external investigation to enable the lawyers to provide advice on legal exposure and options.

c) Document management and communications systems

It is extremely important to have a system for retaining documents about the incident and controlling internal and external communication to ensure that privilege is not expressly or impliedly waived. Some suggestions include:

• identifying a key person within the organisation to be the sole repository for information and documentation concerning the incident;
• communicating the above person’s role to other managers within the organisation;
• advising managers involved in the investigation to: 
  – not discuss information obtained through the investigation with any third parties or internally beyond the same group of managers involved in the investigation; 
  – only share information with internal personnel where necessary to verify information or to obtain new information and to emphasise that the information is confidential in circumstances where the information is shared; 
  – keep all information and documentation arising from the investigations confidential; 
  – provide the above information and documentation to legal counsel as soon as practicable; and 
  – ensure that all hard and electronic copies of any information retained arising from the investigation is contained in a location that clearly indicates its confidential nature and which is only accessible to the manager who identified the information or other persons involved in the investigation.

Conversely, no documents should be destroyed pertaining to an incident if there is a possibility that a prosecution may ensue.

d) Conducting interviews with witnesses

Lawyers or an appropriate independent investigative body (whether internal or external) may conduct interviews with witnesses. Before witnesses to the safety incident are interviewed, it is essential to tell them that the purpose of the interview and the investigation is for the provision of legal advice and that the advice will be treated as privileged. If this is not done, a Court may find that privilege has been impliedly waived.

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

In next month’s Safety Solutions eNewsletter, we will conclude our discussion on client legal privilege, looking at further scenarios and solutions.