The position of legal professional privilege and in house lawyers has again been the subject of a tribunal decision.
In Holman v Warringah Council  NSWCATAD 215 the NSW Civil and Administrative Tribunal (NCAT) had to review the issue in context of correspondence to and from lawyers, both internal and external to a local council, as well as whether and to what extent that correspondence was the subject of the exemption from disclosure under GIPA.
The underlying dispute related to adequacy of stormwater arrangements in a locality and had been something of an issue for some time.
There were four lawyers involved. One was a lawyer in a private firm instructed by the Council.
Two were in-house employees of the Council who held practising certificates and had employment contracts acknowledging the importance of professional independence of employee lawyers.
The fourth appeared, on the evidence before NCAT, to have no practising certificate and had no relevant employment contract or other document relating to legal advisor status involving the Council.
One of the two staff lawyers who held a practising certificate and a relevant employment contract, from time to time, fulfilled other roles within Council.
After a review of the relevant law and facts NCAT acknowledged that the vast bulk of documents in question had been prepared in circumstances where the dominant purpose was obtaining legal advice relevant to resolving the issue to do with the stormwater arrangements. In doing so, NCAT acknowledged that “exploring the possibility of settlement has always formed an integral part of the adversarial litigation process.”
The exemption from disclosure of correspondence involving external lawyer raise no real issue.
The correspondence involving the internal lawyers who held practising certificates similarly was found to satisfy the requirements of section 118 and hundred and/or 119 of the Evidence Act 1995 and so exempt from disclosure under GIPA.
However , the correspondence involving the person from “Legal Services” who did not have a practising certificate nor relevant employment contract did not satisfy the requirements of section 118 of the Evidence Act 1995 and was so had to be disclosed.
The case reinforces than wisdom of in-house lawyers holding practising certificates and having employment contracts acknowledging the need for them, as lawyers, to have an independent status. The case seems to have acknowledged the possibility that an in-house lawyer who, from time to time, fulfilled other roles with a Council may sometimes not always be dealing with Council on solicitor and client basis and not be able to claim legal professional privilege in some circumstances but on the facts of the case it was unnecessary to make that decision. It also reinforces the need for in-house lawyers to carefully distinguish and label their various activities.