What is legal professional privilege?
By Michael Selinger
When a serious safety incident has just occurred at your workplace, the question often asked is what happens next?
But a part of the answer that is often misunderstood is whether you need to engage a lawyer in order to advise on the incident.
The first critical steps following a serious incident are relatively clear. Initially you must attend to the medical needs of anyone who has been injured and notify emergency services and the safety regulator.
In some cases, you might need to first secure the workplace to avoid further risks of injury, including to the injured worker.
Also, there might be issues of access to the injured worker not being possible until the area is made safe, for example if there has been a chemical release into the environment.
But after taking care of any injured workers’ needs, securing the worksite and providing appropriate care for other workers who might have been affected by the incident, do you need to engage a lawyer? And if so, why?
Legal professional privilege explained
Legal professional privilege is your right to claim confidentialityover reports and documents created in the context of litigationor obtaining legal advice.
Anything protected by legal professional privilege cannot be obtained by a safety regulator and will not beadmissible in a court or tribunal. This is an important protection to have over any material your organisation creates following an incident.
For legal professional privilege to be established, it is necessary to formally engage your lawyer to act on your behalf during the investigation, e.g. by formally requesting advice from your lawyer about the incident.
Legal professional privilege will only apply when the lawyer has requested the investigation report be prepared.
It is therefore very important that the contact with your lawyer is made as soon as possible after the incident, as the privilege will only apply to material created after the lawyer has been engaged by the business.
Once the lawyer has been engaged, legal professional privilege will apply to the investigation report regardless as to whether it is prepared by your business, the lawyer, or a third party investigator retained by the business through their lawyer.
Privileged investigation report
During the course of an investigation, the safety regulator is entitled to ask your business for any investigation report that it has prepared. Often this will be different from an incident report, which is usually a basic document outlining a brief description of the incidents.
By contrast, a privileged investigation report will usually contained detailed statements, photographs and opinions of the investigator as to potential causes of the incident.
A safety regulator is also entitled to challenge whether the investigation report is actually covered by privilege. They are also entitled to check whether the report, although originally privileged, is no longer protected because it has been distributed too widely within the business or its contents have been extracted into a more public document.
To test the veracity of a claim for privilege, a safety regulator may ask the organisation a series of questions including:
- a general description of the investigation report;
- the name of the person who requested or directed the creation of the
- the date upon which the document’s creation was requested or directed;
- the purpose or purposes for which the document was created;
- the name of the person who created or produced the document;
- the names of all people who have been given the document, or who had access to the document, including copies of the document; and
- advice on whether the contents of the document have been incorporated into any other document (the second document). If this is the case, identify all people who have been given, or had access to, the second document, giving those people’s full names and position titles.
Lessons for employers
Having in place a serious incident response protocol is important for any business, even if it is never used. The point is that all staff should know what the process to follow is when a serious incident occurs. An important aspect of that process is when and how to engage a lawyer.
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