advice

What is independent legal advice?

If you are:

  • borrowing money from a bank or someone else, like a parent,
  • have some special vulnerability in relation to a borrowing arrangement (such as due to age, inability to speak English well etc),
  • borrowing in relation to a self managed superannuation fund’s limited recourse borrowing arrangement, or
  • perhaps going guarantor on a loan for a company or a family member for their loan,

then chances are you will be asked to get “independent legal advice” from a solicitor in relation to the loan and the security for the borrowing or guarantee.

The document evidencing the loan is usually a:

  • Loan Agreement,
  • Letter of Offer or similar

and may have accompanying terms and conditions etc.

Security for a loan arrangement usually takes the form of a:

  • Mortgage,
  • Caveat or
  • Security Interest registered on the PPSR.

Independent advice us usually required by the lender so that it cannot (easily) be argued later that the borrower or guarantor didn’t understand the gravity of the arrangements being put in place – so although you get the advice, it is really for the lender’s protection.

In order to give independent legal advice, the lawyer will read the loan and security documents provided, advise you as to the meaning and effect of them and discuss any risks.

You will then be required to sign a document called a Declaration under oath confirming that you obtained independent legal advice before you freely and voluntarily signed the loan/guarantee/security documents.

Often the lender will also require the borrower or guarantor to obtain “independent financial advice” from a financial advisor, accountant or other appropriately qualified person. Lawyers, simply by virtue of their profession, possess no special skill to give financial (as distinct from legal) advice.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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in Asset Protection / Business / Commercial Law / Dispute Resolution / General / Litigation / Property / Risk management  by 01 Aug 2023 0 comments

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.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal.

For further information in relation to any legal dispute, litigation matter or any business or commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice.  Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Twitter

in Business / Commercial Law / Dispute Resolution / General / Litigation  by 01 Nov 2019 0 comments