Legal Professional Privilege: Why Use a Law Firm for Child Safety and Safeguarding Services?
Key Takeaways
What it is: Legal professional privilege (LPP), also called client legal privilege, protects communications and confidential documents between a lawyer and their client. It is entrenched by legislation in most Australian states and territories and affirmed at common law, and exists where the dominant purpose of the communication or document is legal advice or legal services relating to actual, anticipated or pending litigation.
Why it matters for safeguarding: When a law firm provides child safety and safeguarding advice, such as a gap analysis of policies or an assessment of potential non-compliance, that advice cannot be shared with another organisation or a government regulator, even in response to a subpoena, unless the organisation chooses to waive privilege. This lets organisations identify gaps, receive recommendations and fix problems without fear that the material will surface in later court or regulatory proceedings. The one exception is communications made to further an illegal act.
What it means in practice: Advice on safeguarding obligations and discrete child safety issues, policy reviews and redrafting, gap analysis audits, training on legal obligations and reportable conduct investigations provided by Safe Space Legal are all protected by LPP, so the organisation keeps control over whether that material is ever disclosed.
We have many clients who come to us, asking for advice on their safeguarding obligations, discrete child safety issues, advice on their policies and procedures and assistance with re-drafting policies. Often, they will ask us what the benefit of coming to a lawyer is.
The short answer is that there are many benefits. One of the most important benefits is that when lawyers provide advice, the advice is protected by legal professional privilege. This article summarises the principle of privilege and how it applies to the services we provide to our clients at Safe Space Legal.
What Is Legal Professional Privilege?
Legal professional privilege (LPP) or client legal privilege is a principle entrenched in most Australian states and territories by legislation and is otherwise affirmed in common law. LPP protects communications and confidential documents between a lawyer and their client.
When Does Legal Professional Privilege Exist?
LPP exists between a lawyer and client if the dominant purpose for which the communication or document prepared for a client is for:
- Legal advice; or
- Legal services relating to litigation or anticipated /pending litigation.
Are There Any Circumstances Where Legal Professional Privilege Does Not Exist Between a Lawyer and a Client?
Any communication or contents of a document that the client or lawyer (or both) know or should know was made with the intent of furthering an illegal act or committing a new one will not be protected by LPP.
Why does Legal Professional Privilege exist?
LPP ensures that discussions between a client and their lawyer remain private and cannot be used or disclosed to third parties or in court. It is an absolutely essential element to foster open and honest communication between a client and their lawyer. It allows clients to seek legal advice without the fear of being compelled to reveal the confidential information which may be adverse to their position.
What are the Benefits of Choosing Safe Space Legal for Safeguarding Advice?
In choosing Safe Space Legal to provide child safety and safeguarding advice, you can take comfort in knowing that your organisation retains LPP for any communications and/or advice given. This means the communications and confidential documents prepared by Safe Space Legal cannot be shared with any other organisation or government regulator (even in response to a subpoena in court litigation) unless you choose to waive LPP.
To give an example, if you seek advice to identify any gaps in your policies or potential non-compliance with your legal obligations, the advice that we give you will be protected by LPP. This will give you comfort to know that the gaps can be identified, recommendations made, and action taken to comply with your child safety and safeguarding obligations, without the risk of this information being released to a third party or in any later court or judicial proceedings.
Safe Space Legal has extensive experience with organisations who work with children and vulnerable people to ensure they are meeting their safeguarding obligations.
Safe Space Legal provides the following services to ensure organisations meet their legal obligations:
- Supporting organisations to have robust recruitment strategies to keep children and vulnerable people safe;
- Providing organisations advice on their legal obligations and compliance;
- Drafting best practice child safety policies, procedures and codes of conduct;
- Conducting gap analysis audits of critical incidents;
- Providing training on legal obligations, duty of care and child safety;
- Conducting safeguarding investigations and Reportable Conduct investigations which are compliant with relevant state and territory schemes; and
- Providing sound legal advice on risk mitigation, discrete legal issues and safeguarding obligations
Contact us for a 30-minute consultation to discuss your organisation’s safeguarding needs
Patrice Fitzgerald is the Principal Lawyer and Director of Safe Space Legal. Patrice has over 20 years of experience working in the legal sector, predominantly in safeguarding and child protection.
Patrice has extensive expertise supporting organisations to comply with their safeguarding obligations. Alongside her role at Safe Space Legal, Patrice is also a Member of the Victorian Civil & Administrative Tribunal in the Review and Regulation List (Child Welfare).
