While the principles of legal professional privilege remain the same, the complexity of applying privilege continues to generate much debate and work for courts.
The complexity of legal professional privilege can compound in the context of newer forms of communication which have become part of mainstream business communication, whether that be Slack, Google Docs, Google Chat, Microsoft Teams or Confluence.
In September, legal leaders from across the Australian tech sector came together as part of HSF’s Tech Collective network in Sydney and Melbourne to explore in-house teams’ approaches to these challenges. In this note, we provide a high-level summary of this thoughtful conversation.
Key elements of legal professional privilege
In order for a communication to be protected by legal professional privilege (LPP), it must be:
- confidential in nature;
- a communication between a lawyer and client, or between the lawyer, client and a third party (such as an expert); and
- made for the dominant purpose of: giving or receiving legal advice (Advice Privilege) or preparing for actual or anticipated litigation (Litigation Privilege).
These privileges exist to provide an appropriately protected channel of communication between a lawyer and a client: generally, a client cannot be compelled to disclose privileged communications to regulators or in legal proceedings.
Regulators and law enforcement are, however, increasingly testing companies’ privilege claims. Some regulators in certain circumstances expect that privileged communications will be disclosed to the regulator. Under the ACCC’s Immunity and Cooperation Policy for Cartel Conduct, for example, immunity is conditional upon “full, frank and truthful disclosure”. The ACCC’s policy states that this includes providing to the ACCC all records of factual accounts obtained in respect of the alleged cartel conduct, whether or not those accounts may be subject to a claim of legal professional privilege.
Challenges presented by new forms of communications
Examples of newer communication methods other than email include Slack, Google Docs, WhatsApp, Microsoft Teams, and Confluence. Regulators and parties to litigation are of course aware of these platforms. Each is increasingly seeking their disclosure in litigation or as part of a regulatory investigation.
These platforms are generating records which are different to emails. Challenges include:
- Channel-based communications: collaboration platforms allow for the creation of multidisciplinary group channels or chats. These may not involve in-house counsel communicating solely with a non-lawyer within the organisation.
- Working documents: collaboration platforms enable several lawyer and non-lawyer users to amend a “live” version of a document simultaneously. Disentangling these changes can take time and ascertaining the purpose of each simultaneous change may not be straightforward.
- Video and audio: collaboration platforms can record when a video or audio call was commenced in amongst a chain of chat messages. Unless they are properly privileged, recorded versions of these conversations could be produced in a regulatory investigation or court proceeding. In the US prosecution of FTX founder Sam Bankman-Fried, for example, prosecutors played a recording of an “all hands” meeting regarding FTX’s collapse.
- Informality: the use of more informal messaging systems entails a degree of imprecision, or potentially lack of care or clarity, bringing with it clear risks of ambiguity or uncertainty.
Risks to the maintenance of LPP include:
- Larger sets of mixed-purpose communications: this means it is harder to establish, as is required, that the dominant purpose of each communication is a privileged one. These communications can extend over long periods of time in one long chain of text. In contrast, emails tend to be organised around chains focused on more clearly-identifiable subjects.
- Informality: chats can be sent without the clarity and precision used in workplace email communications.
- Sensitive information: if LPP does not apply to a chain of chat messages, there may be more risk that an entity will be required to produce chats which refer to content that is personal, sensitive or reputationally damaging.
HSF’s Tech Collective participants discussed a number of potential approaches to mitigating these risks, such as:
- implementing general business guidelines concerning the use of collaboration platforms, particularly when a material legal issue is identified. This may include avoiding the provision of legal advice in more general chats, and providing guidance on establishing a separate chat group for a particular legal matter, which is to be used solely for the purpose of seeking and providing legal advice.
- Developing policies or guidelines as to appropriately engaging legal teams when using collaboration platforms.
- “Pinning” text as the first introductory message in a channel/chat/group created for a particular legal matter, to remind participants within the channel that it has been created specifically for a privileged purpose.
- Including appropriate text at the commencement of a chat message which provides or seeks legal advice (e.g. “The following message is confidential and legally privileged”).
- Depending upon the organisational context, maintaining a barrier between the use of emails and other communication platforms within the business – eg, the emails could be used for legal advice and other platforms used for non-legal purposes.
- A continuing theme in these discussions as part of our Tech Collective network was that privilege protocols for newer collaboration platforms cannot eliminate all risk. The prospects of properly preserving LPP will likely be diminished if employees are not provided with an appropriate introduction to the concept of LPP and the appropriate use of collaboration platforms, particularly in relation to projects or matters which entail legal risk.
- In-house legal leaders are attuned to this risk and seeking to mitigate it, before the issue becomes acute in the context of a regulatory investigation or class action proceeding.
- For more on LPP, HSF’s LPP hub (available here) and LPP podcast series (available here) provide a range of materials. If you need to look into these issues in more detail, get in touch with your usual HSF contact.
This article was originally published on 28 October 2022 and updated on 14 November 2023.