What is client legal privilege?
Client legal privilege, also known as “legal professional privilege” is a fundamental common law concept now covered by the Evidence Act 1995 (Cth) (the Act) that protects the confidentiality of certain confidential communications made between a lawyer and the lawyer’s client.
The rationale for the privilege was to enhance the administration of justice and the proper conduct of litigation by promoting candid and honest disclosure between clients and their lawyers to enable lawyers to give proper advice and representation to their clients. We live in a complex society and our laws and legal system are at times very complicated so obtaining advice is to be encouraged.
Client legal privilege applies to confidential lawyer/client communications or even confidential communications between 2 or more lawyers acting for the client (whether oral or in writing and whether prepared by the lawyer or the client) where the dominant purpose of the communication is:
- seeking or providing legal advice (“advice privilege” – s.118 of the Act); or
- in relation to existing or anticipated legal proceedings (“litigation privilege” – s.119 of the Act)
The communication must have been made confidentially to attract privilege. Where a communication is made in front of a third party, privilege will likely not apply.
Privilege can attach to communications between an in-house lawyer and their employer, provided that the communication is made in confidence and the lawyer is acting in their professional capacity.
It is called “client legal privilege” because the privilege belongs to the client and not the client’s lawyer. A lawyer may only disclose privileged communications if clearly instructed to do so by a client.
How is the privilege waived or lost?
Client legal privilege may be waived by doing some act inconsistent with the confidentiality that the privilege is intended to protect, such as
- knowingly and voluntarily disclosing the substance of the evidence to another person; or
- the substance of the evidence has been disclosed with the express or implied consent of the client.
The litigation arm of the privilege can also attach to third parties such as experts however, where a party seeks to rely on an expert report in litigation, this will waive privilege over the instructions given and the documents referred to or relied upon within the expert’s report.
Privilege does not apply to communications made for the purpose of facilitating illegal or improper purposes. There are also some statutory exclusions to client legal privilege such as in relation to the investigative and regulatory powers of some Commonwealth agencies.
Craig Pryor is principal solicitor at McKillop Legal.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.