Today’s correspondent has:

… recently started to notice organisations that I work with begin to embed into crisis and emergency policies, statements about making decisions under legal professional privilege or assessing the emergency to determine if legal professional privilege needs to be invoked.  (There is often no guidance on how this policy approach is actually applied during the emergency)

Some of the organisations applying this are critical infrastructure owners who are included as part of State EM plans and their plans are written in collaboration with police and emergency services to align with State EM legislation.

I know a colleague who was deployed to Canada to assist with managing fires and the first person they were briefed by on arrival was the Govt lawyer who outlined the requirements for decision making and record keeping.  They were required to sign a letter to formally engage the lawyer and sign an agreement about how information is handled as part of the response and how all information/ documentation now was considered subject to legal professional privilege and they could not disclose information without legal approval.  I asked if that impacted the ability to effectively manage the incident and there were some challenges in sharing information with third parties that in Aust he would have freely shared updates with.  There was also the issue that all work generated during the day was taken and sealed and could not be referred to again, therefore each day was like starting a new and having to remember where they left off the day before.

I wonder whether organisations in Australia are being too risk averse by applying legal professional privilege as part of the management of an emergency when done as part of a wider Govt controlled response; or has this always been the case but just not applied as openly as it appears to be now or is this an increasingly new trend?

I would appreciate any thoughts you have or any reading you could direct me to.

This is not something I have heard of so I cannot say whether ‘this always been the case …or is this an increasingly new trend’.  I can say that, in my opinion, yes ‘organisations in Australia are being too risk averse [if they are attempting to fabricate situations to allow a claim for]… legal professional privilege as part of the management of an emergency’.

Legal professional privilege is a rule of evidence, but it is more than that.  To start with the rule of evidence, if a matter is privileged the owner of the privilege (in the case of legal professional privilege, the client of a lawyer) can resist having to produce privileged material to ‘the other side’ or to a court.  There is a uniform Evidence Act in force in the New South Wales, Victoria, Tasmania, the ACT, the Northern Territory and the Commonwealth (see https://www.ag.gov.au/LegalSystem/Pages/Uniform-Evidence-Acts-comparative-tables.aspx).   For ease of reference I will refer to the Commonwealth Act in the discussion below.

The Evidence Act 1995 (Cth) refers to client legal privilege to make it clear that the privilege belongs to the client, not the lawyer.  The critical section is s 118 that says:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a) a confidential communication made between the client and a lawyer; or

(b) a confidential communication made between 2 or more lawyers acting for the client; or

(c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose of … providing legal advice to the client’.

Client legal privilege is more than just a rule of evidence.  It should govern all aspects of a lawyer/client relationship. What you tell your lawyer, in confidence, should remain confidential. This is not some scam to benefit lawyers but a fundamental cornerstone of the common law.  In criminal cases the burden is on the Crown to prove any case beyond reasonable doubt.  That is to ensure that we all are protected from the excesses of the state that can bring so much more power and resources to any contest than any individual.  If they could just arrest people, let them go to their lawyer and then subpoena the lawyer there would be no burden on the Crown. Further if people cannot be honest with their lawyers many meritorious cases would not be run and equally cases without merit would be run because the lawyers could not give advice on what actually happened.

We might have no sympathy for many offenders in gaol after the Melbourne gang wars, but this principle is so fundamental that there is a Royal Commission (the Royal Commission into the Management of Police Informants) looking at the use of Ms Nicola Gobbo or ‘Lawyer X’ as a police informant. Her decision to inform on her clients was described by all the judges of the High Court of Australia as ‘fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court’ (AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58, [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)).

Further, the court said:

… Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows … the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving EF’s anonymity must be subordinated to the integrity of the criminal justice system.

The duty of confidentiality applies in all lawyer/client transactions.  If people cannot trust their lawyers, they cannot give honest instructions and if they cannot give honest instructions, they cannot get advice on their legal rights. It is not just a tool to allow lawyers to ‘get the guilty off’. If lawyers come to court without full knowledge of their client’s affairs in some cases meritorious cases will be lost; and other cases, without merit will be run.

The NSW Model Litigant policy says

3.1 The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules.  It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially, it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts.

3.2 The obligation requires that the State and its agencies act honestly and fairly in handling claims and litigation by:

a) dealing with claims promptly and not causing unnecessary delay in the handling claims and litigation;…

d) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum including by:

(i) not requiring the other party to prove a matter which the State or an agency knows to be true; …

g) not relying on technical defences …

Discussion

Legal privilege is an essential tool in an adversarial justice system. It is fair enough for the State or its agencies to rely on legal professional privilege when it is honestly and genuinely applicable but it serves no purposes and brings dishonour to make a sham of it.  Simply running a document past a lawyer may give rise to an argument or an attempt to obfuscate the truth but it would bring no credit to either the lawyer or their client. Further to try and manufacture a situation where the privilege can be claimed would simply delay proceedings, perhaps compel ‘the other party to prove a matter which the State or an agency knows to be true’ and would be an attempt to create a technical rather than honest argument.

The critical issue is that the communication has to be made, or the document prepared, ‘for the dominant purpose … providing legal advice to the client’.

Some documents are made for that purpose.  For example, if after the fire a landowner complained that there had been negligent conduct by the NSW RFS and wanted compensation (see for example Recovering the cost of damage by RFS (December 1, 2019)).  A summary document prepared by the RFS outlining what was done, or not done and including the opinion of the instructing officer as to the appropriateness of the decision may be prepared and delivered to the lawyers so that they can advise the RFS of any potential liability.  That document would be subject to client legal privilege.

But simply getting a lawyer to look at every document or asking volunteers to ‘sign a letter to formally engage the lawyer’ would not change the dominant purpose of communications logs, incident action plans or conversations between the members of the IMT.  To believe that this somehow creates a privilege is a non-sense.

Further a government and their agencies, as model litigants, should be disinterested in whether they are sued or not.  If a person sues and wins then they accept they did not act as required by law at the time.  If the person sues and loses then there has been a chance to test their arguments before an independent umpire.  The only difference between winning and losing is how much they pay.

Conclusion

Given the lack of litigation against emergency management agencies yes it would be my view that trying to create what appear to be fictitious arrangements to create an argument for legal privilege is to be too risk averse on the one hand, but exposing an agency to significant reputational risk on the other.  And if a court found that there were disingenuous attempts to create privilege it would no doubt put the party’s reputation at risk and may well mean a court prefers the evidence of the other party.

Where a communication occurs with a lawyer for the dominant purpose of obtaining legal advice, it is a privileged communication.  Running everything past a lawyer in the hope that it will give rise to a claim should anyone later (whether it’s the next day or the next year) want to know what happened is a sham.