ACT court clarifies in-house privilege

WHILE A PRACTISING certificate may be useful to in-house legal advisers, the failure to have one will not automatically void legal professional privilege, according to the ACT Court of Appeal.…

Lawyers Weekly • 12 September 2005 • NewLaw

WHILE A PRACTISING certificate may be useful to in-house legal advisers, the failure to have one will not automatically void legal professional privilege, according to the ACT Court of Appeal.

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Government in-house legal counsel breathed a sigh of relief recently when the Court established exactly when their legal advice is privileged. In Commonwealth of Australia v Vance [2005] ACTCA 35 (23 August 2005), the Court assessed whether certain documents prepared by legal advisers in the Department of Defence could be subject to a claim of legal professional privilege.

The appeal of the ACT Supreme Court decision in Commonwealth of Australian and Air Marshall Errol John McCormack, means that in-house advisers who are admitted as lawyers, but who do not hold a practising certificate, are able to claim legal professional privilege over legal advice that they have created.

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Justices Gray, Connolly and Tamberlin had to determine whether Justice Crispin had erred in introducing the requirement that a professional privilege claim could only be brought where a document was written by a person holding a practising certificate.

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