We recently sat down with Luke Buchanan, Solicitor Director at Buchanan Rees Dispute Lawyers to discuss the key challenges that In-House Counsel typically face with regards to legal professional privilege. He will delve further into this topic at the upcoming seminar, this 13th Annual In-House Conference on Wednesday 4 March.
What are some of the key trends and developments you see impacting in-house counsel right now?
Generally speaking, in-house legal teams are on increasingly tight budgets, with the result that team numbers are kept to a minimum. This results in the team members working long hours while bearing a high workload and being held to short deadlines. This can sometimes mean that the main driver is to get work “off the desk”, without stepping back for a moment to consider whether the work is genuine legal work or alternatively, more commercial in nature. That consideration feeds into the matters discussed below, in relation to legal professional privilege.
What’s a mistake you see some in-house counsel make, or a misunderstanding they might have, related to legal professional privilege?
Many in-house counsel perform more than one role within the company – for example, they may be General Counsel as well as Company Secretary and Head of Risk & Compliance. However, legal professional privilege attaches only to communications which have the relevant dominant purpose (being either “legal advice” or “litigation”). Some in-house counsel can make the mistake of assuming that all communications they send in a professional capacity will attract legal professional privilege, even though communications sent in a non-legal capacity are unlikely to do so.
What’s one tip you can offer in-house counsel grappling with the dual roles they must fulfil as commercial and legal advisers and whether something is a commercial or a privileged legal communication?
This picks up on the point made immediately above. The key is the dominant purpose test – that is, was the communication made for the dominant purpose of the lawyer providing legal advice to the client, or for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding or an anticipated or pending Australian or overseas proceeding? Commercial advice will not satisfy that test; nor will advice that has multiple purposes where the purpose which is relevant for privilege (advice or litigation) is not the dominant one.
What’s a process or strategy in-house counsel should have in place to attract and protect privileged communications?
Because of the nature of the role, a communication sent in the individual’s capacity as in-house counsel is more likely to satisfy the dominant purpose test. It follows that in respect of each piece of work they perform, the individual should be very clear in their own mind as to which “hat” they are wearing. To the extent that this flows through to other indicia (such as the title used in an email sign-off), they should also be very clear to others on the same point. Additionally, labelling a document as being subject to legal professional privilege (where that is genuinely the case) can be helpful, although not determinative in itself. However, such a label should not be applied to all communications with no thought given to whether they satisfy the dominant purpose test, because the label becomes meaningless if that occurs.
Luke spent over 23 years (including more than 13 years as a partner) in litigation and dispute resolution at national law firm, Clayton Utz. He has been recognised in “Australia’s Best Lawyers” for Litigation (2014-2020) and Class Action Litigation (2015-2020). He was also recommended in the list of “Leading Litigation & Dispute Resolution Lawyers NSW” which appeared in Doyle’s Guide 2012 and 2014. Luke has represented many blue chip corporate and government clients in high stakes, contentious matters. The list includes Perpetual, Macquarie Bank, WorleyParsons, GrainCorp, Stockland, Woolworths, AMP, Sydney Local Health District and Sydney Olympic Park Authority. Predominantly, Luke represents clients in disputes in the Supreme Court of NSW or the Federal Court of Australia and in the various forms of alternative dispute resolution. That said, he is also experienced in litigating in other State Supreme Courts and in the District Court of NSW. you may connect with him via email lbuchanan@buchananrees.com or LinkedIn 
