Seems the implied waiver hystericals were right after all

Lawyers Weekly has an article by some folk at Allens noting Justice Branson’s decision in Rich v Harrington [2007] FCA 1987, a mega anti-discrimination suit brought by Christina Rich, a former partner of PricewaterhouseCoopers Australia against the other partners. There are so many privilege cases which come out, it’s hard to know which ones to read. This one would be a good choice: it covers implied waiver, the prerequisites to a successful assertion of privilege over communications with in-house counsel, and the common interest exception to waiver, namely most of the tricky bits.

Pricewaterhouse’s lawyers wrote to Ms Rich saying:

‘Our client has acted at all times with the benefit of external advice and does not believe that there has been any victimisation or other conduct for which compensation could properly be sought.’

That was held to waive privilege in the advice so as to entitle Ms Rich to a copy of it. I have always thought people have been overly hysterical about the dangers of waiver, and, living in fear of it as they do, forego forensic advantage that they might obtain but for their phobia.  Admittedly, this single decision does seem to add fuel to the hystericals’ fire. Allens’ people’s message is: never mention legal advice. To give them their due, they were writing for a national rag. Victorians in fora outside the Federal Court can probably relax a bit more than that because of the Court of Appeal’s decision in Secretary, Department of Justice v Osland [2007] VSCA 96, which the authors mention. Even Victorian Federal Court judges are likely to be influenced by that decision.

One aspect of the law of privilege about which lawyers are more comfortable and relaxed than perhaps they might be is the entitlement of the employers of in-house lawyers to claim privilege over their advice and work. This decision confirms that they are in fact more comfortable and relaxed than they should be.

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