Asserted properly, it enables institutions to manage the dissemination of sensitive information effectively and the reputationally sensitive consequences that can flow from its disclosure.
It is important to appreciate that privilege can be inadvertently waived. Such waiver can have unintended and far reaching implications and can require an institution to disclose what it considered to be confidential material as part of a dispute or subject access request.
Legal Advice Privilege
There are several types of legal privilege, but this article focuses on legal advice privilege.
Legal advice privilege allows a party to withhold details of the legal advice it has received from a third party, a court or a public authority. This applies to any confidential communications between lawyers and their clients (see below) for the purpose of seeking or giving legal advice. So, for example, it is likely to apply to correspondence between a university employee and the university's solicitor regarding the legal implications of a new international venture, the introduction of a new policy, or the handling of a student complaint.
Legal advice privilege only applies to communications that are confidential, so if they are widely circulated, or otherwise enter the public domain, privilege will be waived.
Care should also be taken when reporting matters to the Board/Council (and in the preparation of the minutes of these meetings), as reference to legal advice could also waive privilege. It may be prudent to set up a sub-committee to receive communications on particularly sensitive issues in order to avoid them being reported in the (potentially disclosable) minutes.
Similar issues apply to the reporting of sensitive matters to an institution's insurers and/or regulators. Although it is, of course, vital to provide sufficient detail in these reports to comply with the institution's regulatory requirements, you should ensure they are made on terms that preserve privilege to avoid the communications from potentially becoming disclosable.
We have also seen situations where an institution involved in strategic discussions wished to disclose legal advice it had received. While the privilege in the advice belongs to the institution and it is entitled to waive this, this should be considered carefully as the disclosure of advice to a third party renders it available more widely unless appropriate precautions are taken.
Who is the client?
The definition of a client is not as widely drawn as anyone at the institution. You should therefore consider setting up an 'inner circle' of nominated roles or individuals to receive legal communications (which will normally include the senior management team).
This would enable legal communications to be circulated without inadvertently waiving confidentiality (and so the privilege) attached to them. Staff within the 'inner circle' should be advised not to copy in other colleagues to emails and to refrain from forwarding emails unnecessarily.
Legal advice privilege only applies to communications between lawyers and their clients. It does not, for example, extend to communications that an institution may have with its external HR advisors, claims consultants or accountants, and this should be borne in in mind when discussing sensitive legal issues.