Three Rivers is a very recent decision, with very significant implications for in-house lawyers in many areas including governance. Organizations must continue to be very wary as to how, and through whom, they seek legal advice. This applies just as much when advice is being sourced internally as externally. Consider the following to help ensure that legal advice privilege does attach:

• •  Identify at the outset who the internal client is for the purpose of seeking the legal advice in question. It is likely that this will be the person or persons who actually communicate with the lawyer and who make decisions upon the advice to be sought and received. If the communicator with the lawyer is not the same person as the relevant decision maker, then you could have a problem.

• •  Once the client is identified, do not allow the provision or receipt of information to, or from, legal advisers to be delegated to others.

• •  Be careful how information is disseminated internally and externally. If it is disseminated widely there is again a possibility that legal advice privilege will be lost.

• •  Consider the greater use of ‘litigation privilege’ when litigation is reasonably in prospect. It can cover communications with a third party so long as the dominant purpose of the communication is that there is an intention for it be put before the lawyer.

• •  Avoid making manuscript amendments in the margin of documents or correspondence, as these may not be privileged.

• •  Where legal advice is obtained, any internal assessment of that advice may not be privileged, so consider how it is recorded. It may be sensible for all initial assessments and summaries to be conducted by an in-house lawyer before circulation to internal clients.

All communications relating to legal advice between a client and its lawyer, whether in-house or external should be clearly marked ‘Legally Privileged’. This practice could be devalued however if used indiscriminately, and the courts will consider the dominant purpose of the communication when determining whether privilege does in fact attach … In select cases, cautionary language should be considered putting it beyond doubt:

• •  who you are advising and in what capacity;

• •  that you are advising the recipient in his or her capacity as an executive of the organization and in no other capacity;

• •  the facts on which your advice is based;

• •  the limitations to which your advice is subject; and

• •  if you are copying your advice to colleagues, the reasons why, in order to deflect any argument that by doing so you are waiving privilege.

(p. 628)