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Legal Professional privilege is a protection vehicle of certain communications against being disclosed, which thereby assists the administration of justice.  It provides clients confidence to make full and frank disclosure to their lawyers. There are three types of this privilege: advice privilege, litigation privilege and third party privilege.

Legal Professional Privilege is also called client legal privilege, as it protects and importantly, belongs to the client, not the lawyer. It applies to both civil and criminal matters.

LEGAL PROFESSIONAL PRIVILEGE vis a vis LAWYERS’ ETHICAL DUTIES

Privilege is a related but separate issue from lawyers’ ethical duty of confidentiality.

Privilege:

  • Privilege a right of the holder and is for holder to claim or waive.
  • A lawyer’s role is to advise the client about privilege and then to act on client instructions (e.g. claim it for client or waive as agent for client).
  • A lawyer cannot claim privilege to force a client to hide a document or information that the lawyer would like to keep secret. Only a client or witness gets to decide.
  • A lawyer can only claim this privilege for themselves when they are another lawyer’s client (i.e. they are acting as the client or witness not as a lawyer).

Lawyers’ ethical duties:

  • They arise from fiduciary & contractual relationship between lawyer and client plus professional ethical standards.
  • A lawyer has duty to client to keep client information and documents confidential.
  • All documents and client information must be treated as confidential unless exceptions apply under rule 9 Australian Solicitors Conduct Rules.
  • ‘All documents and client information’ means everything, not just those that would normally be privileged.
  • They are not governed by the same rules as privilege.

WHEN AND HOW DOES LEGAL PROFESSIONAL PRIVILEGE APPLY?

Privilege does not protect all communications between a client and his or her lawyer. It only applies to the communications made for dominant purpose of giving or obtaining legal advice and communications made for dominant purpose of preparing for actual or contemplated litigation (including third parties).[i]

Interestingly, copies can be privileged even if original is not.[ii] Privilege protects communications, including documents, but not real evidence. Privilege continues after the death of the lawyer.

EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE

Even if the communications were for the dominant purpose of the lawyer providing legal advice or legal service to the client, there are still several exceptions to legal professional privilege including:

  • Disclosure is in the public interest
  • The privilege was waived
  • A statute modifies or removes the privilege where the legislature affords a competing public interest a higher priority (must be done in unambiguous terms)[iii]
  • The communication is for the purpose of facilitating a fraud or crime

WAIVER OF LEGAL PROFESSIONAL PRIVILEGE

Only a privilege holder (a client) can waive privilege. Waiver can be express or implied, deliberate or inadvertent or imputed by law. Ordinarily, questions of waiver arises when there has already been some limited disclosure. Waiver found whenever it would be unfair to assert continued existence of privilege.[iv] The test for waiver is whether there is an inconsistency between conduct of client and continued existence of privilege.[v]

HOW SHOULD A LAWYER ASSIST A CLIENT IN MAINTAINING PRIVILEGE?

There are certain precautions lawyers might undertake to advise their clients regarding maintaining legal professional privilege, including:

  • Marking documents that include legal advice as ‘Strictly Private and Confidential’ and ‘Subject to Legal Professional Privilege’ to highlight the nature of the document;
  • Procedures put in place to ensure that if a document is to be sent to a third party, it is done on an express basis of confidentiality. Where appropriate a copy should also be sent to the relevant legal adviser to comment on the communication;
  • Privileged documents (or communication of their substance) are not to be circulated wider than necessary and only on a confidential basis; and
  • When seeking the assistance of third parties in formulating a request for legal advice, make it clear that the information is required for the purpose of obtaining legal advice

[i] Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

[ii] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

[iii] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

[iv] Goldberg v Ng (FC95/044) [1995] HCA 39

[v] Mann v Carnell (1999) 201 CLR 1