Client legal privilege issues in managing and investigating safety incidents — Part 3

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

4. Issues concerning external lawyers and organisations corresponding with third parties involved in the safety incident and the safety regulatory authority

It is not uncommon for multiple parties to be involved in a safety incident at a workplace. These parties could include associated companies, directors, shareholders, insurers, workers, families of workers and other businesses or contractors at the same workplace. These parties may continually request information from the organisation directly involved in the safety incident. It is vital that procedures are put in place within an organisation to ensure that privilege is maintained and not expressly or impliedly waived.

To avoid waiving privilege when communicating with a third party or safety regulatory authority, the following action is recommended:

• do not reveal the substance or conclusion of legal advice received;
• do not refer to legal advice received in such a manner as to disclose the substance or conclusion of the advice, especially if the reference is simply to bolster a client’s position. A recent example of such a reference is: “[The client has] acted at all times with the benefit of external legal advice.” This was considered to be an express waiver because it conveyed the message that the client’s conduct was undertaken on external advice and in accordance with that advice. Extreme caution should be used when referring to legal advice because it is likely such reference will result in a waiver of privilege; and
• decisions about the provision of confidential information should be made on a case by case basis. It is strongly recommended that any proposed disclosure of information to a third party is first confirmed with legal advisors.

5. Issues concerning multiple entities involved in a safety incident

Frequently, different lawyers will be acting for different entities that are involved in the same safety incident. The primary issue to consider is identifying potential conflicts of interest. An example of this is where lawyers for a company may wish to lead different evidence and defences to that company’s directors and managers. It is important to be able to identify this divergence of interests quickly so that information intended to be privileged is not shared amongst the parties such that the privilege is waived.

A secondary issue concerns joint reports. Commissioning joint reports can be risky where parties’ interests may conflict over the course of the investigation. If that happens, it could result in one party claiming privilege over the report while the other party waives privilege over the report. Unless the report is protected by joint privilege, one party’s waiver of the privilege is binding on all parties.

*Katherine Morris is a Senior Associate at Corrs Chambers Westgarth.