10.2 Legal privilege
Legal professional privilege
Legal professional privilege is a term that applies to the protection of confidential communications between lawyer and client. If legal advice is protected by legal professional privilege, it will not be required to be produced for inspection during discovery in legal proceedings and will likely be protected from disclosure under the Local Government Official Information and Meetings Act 1987 and the Privacy Act 2020 [1].
There are two types of legal professional privilege.
- Solicitor/client privilege protects communications between client and lawyer where the communication is intended to be confidential, and the communication is made in the course of and for the purpose of obtaining legal advice.
- Litigation privilege protects communications and information made, received, compiled or prepared for the dominant purpose of preparing for court proceedings or an apprehended court proceeding.
In this context, the council is the client. Council communications (including emails) seeking or providing legal advice are legally privileged, including those between the Ngā Ratonga Ture / Legal Services department and external lawyers. Exchanges between council witnesses and lawyers to prepare evidence are also legally privileged.
It is very important that legal professional privilege is maintained. Ngā Ratonga Ture / Legal Services staff can advise on how to ensure legal professional privilege is not inadvertently waived.
Staff and elected members should not disclose privileged material outside of the council without first seeking advice from Ngā Ratonga Ture / Legal Services department.
Presentation of legal advice
A document is not automatically privileged because a lawyer prepared it, or it is labelled ‘legally privileged’. Often only parts of a document will be privileged (for example those parts seeking or recording legal advice, as opposed to providing policy advice).
To ensure legal advice is properly protected by legal professional privilege, legal advice should:
- where practical, be separated from policy advice, even if both kinds of advice are contained in the same document
- be marked ‘confidential and legally privileged’.
Footnotes
[1] Local Government Official Information and Meetings Act 1987, s 7(2)(g); Privacy Act 2020, s 53(d).