15.2.1 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].
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There are two types of legal professional privilege:
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Solicitor/client privilege - protects communications between client and lawyer where the communication is intended to be confidential, and the communication is made for the purpose of obtaining legal advice.
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Litigation privilege protects communications and information made or received for the dominant purpose of preparing or conducting court proceedings, where proceedings are either underway or reasonably apprehended.
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In this context, council is the client. Council communications (including emails) seeking or providing legal advice are legally privileged, including those between the Legal Services department and external lawyers. Exchanges between council witnesses and lawyers to prepare evidence are also legally privileged.
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It is very important that legal professional privilege is maintained. 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 Legal Services.