Can you keep legal advice private?: Rich v Harrington

You obtain legal advice about a claim by another person and tell the other person that you have obtained legal advice. When can another party suing you obtain a copy of that legal advice?

In Rich v Harrington [2007] FCA 1987 the Federal Court of Australia dealt with the right of Ms Rich to obtain copies of legal advice received by the management of PricewaterhouseCoopers (PwC) in relation to an action Ms Rich (a former PwC partner) instituted against past and present partners of PwC under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) alleging conduct in breach of that Act and the Sex Discrimination Act 1984 (Cth) following complaints of discrimination she made.

Judge Branson allowed Ms Rich access to 2 types of documents which PwC claimed were privileged:

1. In a letter to her, PwC rather than just saying PwC had taken legal advice and had acted with the benefit of it, it disclosed the substance or conclusion of the external advice received by PwC in an effort to bolster its position. The judge found that PwC had waived its privilege over the advice.

2. Ms Rich also challenged PwC’s claim for client legal privilege in respect of the legal advice provided by persons comprising its Office of General Counsel (OGC) on the basis that the relationship between PwC and its OGC was not such as to give rise to the privilege.

The judge concluded that the relationship between OGC and PwC in the particular circumstances was not such as to secure the advice of OGC concerning Ms Rich’s allegations the objectively independent character necessary to support PwC’s claim of client legal privilege.  OGC was not in a position to give professionally detached advice to the respondents concerning allegations of the character of those made by Ms Rich.