4.62 Legal advice in departmental documents and Cabinet papers should be protected from disclosure in a manner consistent with the law. The guidance in paragraphs 4.63 – 4.72 sets out the required approach to the release of legal advice. Guidance on the release of draft government legislation outside the Crown can be found in Cabinet Office circulars.
Legal professional privilege
4.63 Legal professional privilege is a term applied to the protection of confidential communications between a lawyer and a client. If legal advice is protected by legal professional privilege, it may be protected from disclosure under the Official Information Act 1982 and the Privacy Act 1993, and will not be required to be produced for inspection during discovery in legal proceedings (see section 9(2)(h) of the Official Information Act and section 29(f) of the Privacy Act). It is therefore important that legal professional privilege in legal advice provided to the government is maintained, and not inadvertently waived.
- Solicitor/client privilegeapplies to communications between a lawyer and a client, where the lawyer is acting in his or her professional capacity, the communication is intended to be confidential, and the communication is for the purpose of obtaining legal advice.
- Litigation privilegeapplies to communications or information compiled for the dominant purpose of preparing for a proceeding or an apprehended proceeding. It applies to communication between a party to the proceeding and any other person and communication between the party's legal adviser and any person. It also applies to information compiled or prepared by, or at the request of, the party or the party's legal adviser.
4.65All legal advice that is provided to Ministers or government agencies (whether it is internal advice from departmental legal advisers, advice from the Crown Law Office, or advice from outside legal firms to either Ministers or government agencies) will attract solicitor/client privilege. A document does not automatically attract solicitor/client privilege merely because a lawyer prepared it or it is labelled “legally privileged”. Only those parts of a document that record legal advice (as distinct from other types of advice, such as policy advice) will attract solicitor/client privilege.
4.66 Some government documents necessarily include legal advice, so that Ministers and government agencies have all the relevant information and advice before them when they make a decision. For example, a Cabinet paper may contain legal advice on a proposed transaction, or the government's proposed strategy for settling or conducting legal proceedings.
4.67To ensure that legal advice provided to the government is properly protected by solicitor/client privilege, all those involved in preparing documents containing legal advice should follow these guidelines:
- Legal advice should be clearly separated from policy advice, even if the two kinds of advice are provided in one document. Departmental lawyers are encouraged to consider carefully the role they are performing (that is, whether they are providing legal or policy advice, or both), and the way in which their advice is given and will be used.
- Depending on its nature and extent, the legal advice should be either:
- contained in a separate section, and described in a way that makes it plain that it is legal advice from the Crown's lawyers (for example, “The Crown Law Office advises that ...” or “Counsel from the Ministry advises that…”); or
- attached as an appendix in the form of an opinion from a legal adviser (for example, Crown Law Office, Solicitor-General, or in-house counsel from the department).
- It is also useful if the document clearly shows that the legal advice is “legally privileged”. If the entire paper is legally privileged, a security classification and endorsement such as “Legally Privileged: In Confidence” may be appropriate.
Waiver of legal privilege
- Express waiver occurs when a client chooses to waive privilege in the legal advice and release it.
- Implied waiver occurs when a client voluntarily discloses a significant part of the legal advice in a way that is inconsistent with a claim to its confidentiality. In these circumstances the privilege would likely be treated as implied to have been waived even if the client did not intend this. A simple statement by a client that legal advice has been received is unlikely to amount to an implied waiver of privilege. Partial disclosure of the actual legal advice received, or reference to the content of the legal advice, however, may result in waiver of privilege. For example, a statement such as “I have received legal advice and acted on it” may constitute a waiver. If upholding privilege following partial disclosure would result in injustice, a court would be likely to find there had been implied waiver.
4.69 As part of the Attorney-General’s constitutional role, the Attorney-General represents the Crown in the courts and provides legal advice to the government. Day-to-day instructions to legal advisers are usually provided by departments, agencies, or other Ministers under the authority of the Attorney-General. Nevertheless, the constitutional responsibility of the Attorney-General remains. The Attorney-General has the right to:
- obtain copies of all legal advice provided to the Crown (from whatever source);
- determine whether to release that advice; and
- instruct all lawyers acting for the Crown.
4.70When determining whether to release legal advice that has been provided to the government, or to refer to the content of such advice, and waive (or potentially waive) legal privilege, there is a need to:
- ensure a coordinated government approach to release;
- avoid any adverse impact from a release on current or potential legal proceedings; and
- ensure that no single release will create an undesirable precedent.
4.71Where a Minister or a government department considers that it is necessary to release legal advice or refer to the content of such advice, the matter must first be referred to the Crown Law Office. The Crown Law Office will in turn refer the matter to the Attorney-General’s office for approval.
4.72 Where a request is made under the Official Information Act 1982 or the Privacy Act 1993, the decision on release must be made by the Minister or chief executive who received it. The Attorney-General (through the Crown Law Office) should be consulted about the request.