West v Kowhai School illustration of the difference between advice from a Lawyer compared to a non-Lawyer
Most people appreciate that when discussing a confidential matter with a Lawyer, their communications are protected by the concept of legal privilege and do not need to be disclosed to anybody.
In the current employment law landscape, much of the work is performed by practising Lawyers, and as a result, their client’s are afforded this privilege. However, many clients also receive advice and representation from Employment Advocates, HR Professionals and those who hold law degrees but not practising certificates. There is no Lawyer/client relationship present here even though the type of work performed is identical. The question is whether legal privilege applies to clients represented by non-Lawyers?
The short answer is no – there are circumstances in which information that would have otherwise been protected by legal privilege is not protected due to the professional engaged not being a practising Lawyer.
Privilege for Non-lawyers
The Employment Relations Authority recently examined this in West v Kowhai Intermediate School Board of Trustees where an Advisor of the New Zealand School Trustees Association (“NZSTA”) provided HR advice to the board. The Advisor was not a lawyer and did not go on to act for or represent the School in the subsequent litigation. During the course of the hearing, this information about the advice the Advisor gave to the School was used by counsel for Mr West when cross-examining one of the Board’s witnesses. The Board objected to this information being used in cross-examination, claiming the information was subject to professional legal privilege.
Both parties made submissions in respect of the matter:
- The Board submitted the information should be protected by legal privilege, arguing the privilege is broader in employment disputes than general litigation, and the extension of professional legal privilege is accounted for in the Employment Relations Act 2000 (the “Act”). The Board referred to Schedule 2, clause 3 of the Act which extends the privilege to non-Lawyers in certain circumstances, noting “… any communications between the [non-Lawyer Representative] and [the client] in relation to those proceedings are as privileged as they would have been if [the non-Lawyer representative] had been a barrister or solicitor.”. The Board submitted this part of the Act should be applied despite the Advisor not going on to act for the Board.
- Mr West submitted that the Act was clear that privilege should be extended to non-Lawyers representing a client in proceedings, but that was not the case here – the Advisor was not captured by the clause because he was not in that role. At the time the advice was given there were no proceedings on foot, neither could any have been contemplated. It was submitted that the case law relied upon by the Board did not accurately reflect the current legal position as it predated the enactment of the Lawyers and Conveyancers Act 2006 and of the Evidence Act 2006, the effect of which has been to effectively overrule any common law legal professional privilege.
The Employment Relations Authority Member determined that, as the Advisor was not a Lawyer, the protection of Lawyer/client privilege did not apply. It appears the Member also considered schedule 3 clause 2 of the Act was not relevant in these circumstances as the Advisor was not captured by the clause. However, the Member considered there was another kind of privilege – litigation privilege – which might apply.
Litigation Privilege for Non-lawyers
Litigation privilege is a broader type of privilege protecting information during the course of, or in the context of preparing for, litigation. Litigation privilege only attaches if the advice or information is provided when litigation is taking place or contemplated as reasonably probably (drawing a distinction between the ‘definite prospect’ of litigation and a ‘vague anticipation’ of it.) The Authority said this privilege applies to ‘lay advocates’ (non-Lawyer professionals representing clients during litigation.) On the facts in this case, the Member determined:
- Litigation was not pending – at the time the advice was provided by the Advisor, no personal grievance had been raised, neither had Mr West been dismissed yet.
- Litigation was not contemplated – again, a personal grievance had not been raised, neither had one been ‘mooted’. At the time of the advice, the Board was conducting a disciplinary process – there may have been a ‘vague anticipation’ of litigation but nothing more.
If in the West v Kowhai School case the Advisor been a Lawyer, Lawyer/client privilege would have protected the information, however as the Advisor was not a Lawyer, this protection did not apply – instead, litigation privilege may have applied, however on the particular facts of the case it did not. The case serves as a notable illustration of how, even though the substance of the work is identical, the distinction between a Lawyer and a non-Lawyer performing the work can make a material difference in the matter.
As specialist employment lawyers we can help with any employment related issue – we are happy to discuss with you how we can assist, whether you are an employer or an employee.