The Evidence Act 1995 (NSW) (the Act) provides the statutory regulation of legal professional privilege in NSW. Paragraph 117(1)(a) (Definitions) provides, that a ‘client’ includes “an employer (not being a lawyer) of a lawyer.” This provides for the growing number of in house lawyers in NSW, that is lawyers working in the wider business community”, rather than in legal services firms.

In addition to this, section 118(a) of the Act provides that “evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: a confidential communication made between the client and a lawyer” or (c) “the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,” for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

Finally, section 119 provides that evidence “is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in the disclosure of…confidential communication…or…contents of a confidential document… for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding…in which the client is or may be, or was or might have been, a party.

Duality

An increasing trend is noted, of appointing the general counsel of public companies to dual roles. In a number of casesthis is the role of company secretary, however it could also extend to a senior management position, reporting directly to the CEO and is thus an executive officer of the company under the Corporations Act 2001 (Cth). It includes general counsel being appointed a director of the company.