External Legal Advice - Legal Professional Privilege

[Danman132]

In Australia, can an external law firm claim legal professional privilege if they also act in other capacities for the client? Such as for commercial capacities.

Is there a precedent for this in case law?

 

[Rod]

It is generally the client that holds the privilege, not the law firm.

The client has the privilege and the law firm has the obligation to protect the client's legal privilege.

This is not straight forward area of law and you should seek advice for your specific factual circumstances.

 

[Danman132]

You are right. It is the client who holds privilege. I suppose what I'm asking is whether there's any case law which indicates that the external law firm needs to prove their independence in the same way as in house lawyers?

 

[Rod]

What is the real issue at play here? A better description increases the chances of a better result. Plus the law firm themselves should be able to answer your questions.

 

[Danman132]

I can't divulge the details in full, but it's an FOI request where legal advice was obtained from an external law firm. The agency has noted that they had 'ongoing relationship' with this firm. That suggests ongoing business and the possibility that they may have been employed in other capacities other than a legal capacity. As is the rule under common law for in-house counsel I would think that there is a need to prove that the agency did not employ this law firm in, say, a commercial capacity as well.

I can find plenty of case law where this rule has applied to in-house lawyers but not for external law firms.

This is why I was hoping to find some case law that would support an arguement for scrutiny of this external law firms relationship with the agency. This way I can argue to counter their claims of legal professional privilege.

Thanks for your help.