Navigating Legal Professional Privilege as a Forensic Accountant
How barristers educate and shape our thinking on legal professional privilege
Anthony McInerney SC and Nicholas Bentley’s Australia Law Journal article (2025) - "Can You Really Claim Privilege Over Evidence That You Have Served? Reconciling Conflicting Appellate Authority and Modern Case Management Principles"
– brilliantly dissects the tension between traditional privilege doctrines and today’s push for efficient and transparent litigation. As a forensic accounting expert witness with 25+ years working in many different commercial disputes, I see this tension play out in the demands for workpapers, draft reports, and communications involving the expert witness.
Key take-away points from this article
Older jurisprudence, as cited in the article by Anthony McInerney SC and Nicholas Bentley, often maintained that privilege over working papers and draft reports survives until the expert’s finished report is tendered in court. This means that until that formal step occurs, these preparatory materials retain their confidentiality, which support claims for legal professional privilege. These authors contrast this with modern litigation principles, influenced by the push for "just, quick, and cheap" resolutions, identifying a shift that if a final report is disclosed (thereby laying all the cards on the table), then the associated materials which influenced that report should also be available to ensure that litigation proceeds on a level playing field.
The debate over whether working papers and draft reports should retain privilege when an expert report is served is more than academic. It affects:
• Litigation Strategy: A party’s decision on how to organise, review, and eventually serve an expert report can have long-term consequences, i.e. affect the outcome. If the preparatory materials are disclosed, then any inconsistencies or vulnerabilities in the expert’s analysis come under the spotlight.
• Expert Independence: Experts must be able to document their honest opinion free of undue influence from others. The communications with the expert and subjective statements in that process will be examined. Experts must also be aware that if their draft work is later inspected, it might be used to challenge their credibility or the validity of their conclusions.
• Judicial Efficiency: The modern approach seeks to avoid last-minute surprises at trial. By encouraging the disclosure of underlying materials before the hearing, parties can more efficiently resolve disputes or narrow down the contested issues.
Q&A on navigating legal professional privilege from a professional expert witness
I recently joined the authors of this article at a CPD event called 'Privilege vs. Practice: Navigating Conflicting Case Law in the Age of Case Management', to provide my perspective on this topic.
The questions & answers below delve into the operational realities expert witnesses face regarding document control and collaboration between lawyers and experts, often involving reliance on other witnesses. I preface all my answers that I am not meant to be an advocate for my client paying for my work and emphasise the importance for me to remain neutral to the outcome, e.g., my primary goal is to help the court. I align our firm's internal processes with this in mind. Maintaining rigor in arriving at my key conclusions is fundamentally important as too is operating on the pragmatic presumption that any part of my work could be required to be made available to 'other' side and to the court.
Question 1: What documents could be lawfully demanded from an expert witness in litigation?
In short, workpapers, draft reports, and communications are all potential items that may be demanded of an expert witness to be produced under a subpoena.
'Working papers' are essentially the internal notebooks of an expert witness and arguably the team supporting the expert witness, which include raw computations, unpolished analyses, brainstorming notes, and evidence gathering details.
'Draft reports' are the early versions of the final report, where the expert’s initial opinions and methodologies are laid out before refinement.
'Communications' are typically focused around the provision of instructions to me.
These categories of documents can capture the expert's thought process and the analytical journey toward a final opinion contained in the expert witness report.
Question 2: How do you handle requests for underlying documents (e.g., drafts, workpapers, etc) post-service of your final report? Do you see this as a challenge to your independence?
My firm presumes all materials from initial client enquiry stage to the date of the final trial hearing could be subpoenaed. This potential scrutiny ensures that I will be seeking to make all reasonable and desirable enquiries throughout this time period, undertake robust analysis to assist the court, and take precautions to withstand challenges to my credibility and persuasiveness as an independent expert witness.
The primary message to get across to the client(s) paying for my work (via the instructing solicitors) in the event of a subpoena being served is that time will be required to carefully review and consider every document on its own merits. There are usually documents in my possession that do not fall within the requests for certain categories of documents, so specific documents can reasonably be exempt from being produced. Unavoidably, in reviewing documents there is also consideration of potential questions that might seek to discredit me or questions to illicit answers that may be considered helpful to the opposing party without further qualification.
There is also typically a need to forewarn that the reasonable costs of compliance with the subpoena will be above the conduct money that has been provided.
Question 3: Given there is a tension between privilege and modern case management principles for transparency, how can forensic accounting expert witnesses assist in aligning their work with the 'cards on the table' approach while protecting legitimate confidentiality?
My primary focus is on delivering robust expert opinion evidence rather than assisting on procedural battles between adversarial parties. I leave it to the lawyers to argue over the merits of claiming legal professional privilege and using other arguments to object to the subpoena that could be served on me. With that said, the following are practical steps our firm takes take when preparing an expert's report to minimise disputes over privilege or waiver of underlying materials:
• Structured document management. Our firm maintains clear folder structures for all engagements, including segregation of client proposal/acceptance documents, tax invoices and supporting records, working papers, independent research, legal correspondence between parties, documents supplied to our firm, affidavit evidence, pleadings, draft report and final report.
It is important that any draft reports are clearly labelled as such, with any opinion contained therein being clearly stated as preliminary and could be subject to change in the final version. We are typically instructed to mark our communications with "subject to legal professional privilege", and we accordingly follow our instructor's advice to do so.
• Explicit reliance. If I make an assumption in my report drawn from reliance on a document, I cite that document clearly in my report so parties know that the document is part of my evidence.
• Proactive client warning. Our firm's engagement letter states that I need to be independent and be seen to be independent from the client and outcome sought by the client. In practice, this means the client paying for the my services should avoid direct communications with me, use their legal representative to supply documents to me including any assumed facts. This will help preserve any subsequent claims for legal professional privilege in relation to documents held by the client.
• Email minimalisation. Solicitors can be busy and focused on other matters, so email can be used as a communication tool between expert and lawyers to provide updates on progress and/or identify problems in proceeding forward requiring decisions to be made. These communications can potentially be fertile ground for informal commentary that could be misconstrued. The less said in emails may be better, however, I always discuss preferred method(s) of communications with my instructing solicitors at the outset. The key principles is to adopt neutrality and to avoid speculative/or and adversarial language in any communications. Also, we limit sending our email communications to the law firm instructing us, and only to those who are on the legal client engagement team.
• Code of conduct for expert witnesses. Expert reports filed with the court that are dated on the same date of the instruction letter from the solicitor essentially invites the opposing party to seek production of all documents given to the expert. There can be valid reasons for why the instruction letter containing the question(s) to be answered by the expert has evolved over the course of the engagement. It is our recommendation that solicitors should not delay in the issue of a letter requesting the services of the expert to act as an expert witness and supplying the code of conduct for the expert witness, so this letter can be attached to the report to be served. This provides greater transparency to the adversarial parties and to the court over when the engagement with the expert witness commenced.
• Notes of meetings. Solicitors are better suited, over expert witnesses, to take contemporaneously prepared notes of meetings involving the expert witness and to prepare a clear summary of action points and any instructions given in respect of the meeting. The use of webconference, and potential for sharing of screens, is a matter for the lawyers to consider, noting that the expert witness is seeking to be transparent to the court in arriving at a concluded opinion.
Question 4: Where do you see the greatest risk for the potential for waiver of legal privilege?
Arguably, the greatest risk arises when instructed on pre-litigation matters. In pre-litigation matters, the legal team may not have all the facts, documents and key assumptions and there may be less formality around the process for supplying relevant documents and information from the client to allow me to carry out the forensic accounting work. Privilege preservation demands disciplined collaboration between lawyer, expert and client so I remind solicitors to manage our mutual client's litigation risks and for the client to take appropriate steps to preserve claims for legal professional privilege.
Matters where the plaintiff strongly believes the matter will resolve without a final hearing also presents risk.
Question 5: What can you practically do to help the client manage its risk for the potential for waiver of legal privilege?
Some clients may seek to bypass solicitors in the early dispute phase to "save costs." I would typically decline these engagements until there is legal representation overseeing the workflow. Solicitors are key to educate and remind their clients on steps required to preserve claims for legal professional privilege, and that the primary role of an expert witness is to assist the court (which overrides the duty to the client).
Occasionally, I take queries from potential clients informing me that their solicitor has said to them to make their own enquiries to find a forensic accounting expert. Typically, I am asked in this initial point of contact to provide an estimate of fees for an unclear scope of work, which requires asking more questions, and this process should ideally be led by the solicitors, and not the client involved in the dispute.
Conclusion
In an era where courts increasingly demand transparency, our protocols turn privilege management from a vulnerability into a strategic advantage in reaching a financial resolution in the dispute. Solicitors are encouraged to contact me to discuss privilege-proof engagement strategies involving client disputes as we welcome and encourage solicitor-filtered workflow
for our forensic accounting engagements.
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