Imagine you receive a piece of essential legal advice from your lawyer concerning a current dispute before the courts. Logic would suggest that that advice is private to you and your lawyer, right? There is a legal concept that exists to articulate that inherent right of confidentiality with a trusted legal advisor – legal professional privilege. 

The concept of legal professional privilege or client legal privilege has received considerable attention from Courts in the past few years. The purpose of this article is to provide a quick refresher or an introduction to the concept. 

What is Legal Professional Privilege? 

Legal professional privilege is a right intended to protect communications between a lawyer and their client from forced disclosure. Although wide-reaching, the right is not without its limitations. In order for a client to claim this type of privilege, there must be three clear characteristics present: 

  1. Communication – whether it be oral or in writing; 
  2. The communication is confidential in character; and 
  3. The communication has been prepared for the main purpose of either: 
  4. Giving or receiving legal advice and/or legal services; or 
  5. Actual or contemplated court proceedings often referred to as litigation privilege. 

Legal professional privilege is designed to facilitate the provision of frank legal advice from a lawyer and protect a client’s privacy in having received that legal advice and/or services. 

A real-life example of whether legal professional privilege exists was tested in the case of Grant v Downs (1976) 11 ALR 577. In this case, the defendant filed a list of documents in compliance with an order of the Court noting several reports to a secretary of the Department of Public Health which were the subject of legal professional privilege.

 

The defendant went on to confirm by several affidavits that the purpose of the reports was to, amongst other things, determine whether there had been any breaches of discipline by staff or faults in security in a psychiatric centre. 

 

Ultimately, the Court determined that the reports were not privileged because legal professional privilege from production is confined to documents that are prepared for the sole purpose or legal advice or legal proceedings. You can read case notes on the Grant v Downs case here: http://classic.austlii.edu.au/au/journals/MonashULawRw/1978/13.pdf 

Waiver 

One of the exceptions to legal professional privilege is where it has been ‘waived’. Privilege can be waived either expressly or impliedly and therefore is worth closer examination. 

In circumstances where it is alleged the privilege has been waived impliedly, the party to whom privilege has been waived must exhibit conduct inconsistent with the maintenance of that privilege. 

 

For example, in the case of Mann v Carnell (1999) 168 ALR 378, the High Court considered the question of whether disclosure of legal advices by the Chief Minister of the Northern Territory to an independent member could result in the waiver of legal professional privilege in respect of those advices. 

 

Interestingly, the High Court determined that privilege over the legal advices had not been lost on the basis that the disclosure was for the purpose of illustrating the reasonableness of the contract of the Territory in relation to current court proceedings and has been disclosed to the member on a confidential basis. You can read the High Court’s full decision here: https://eresources.hcourt.gov.au/showbyHandle/1/9499 

Overview 

The concept of legal professional privilege is a complex one but has real-world impacts for lawyers and their clients. It is essential that clients of potential or actual litigation understand and appreciate not only the purpose but also the benefit of legal professional privilege. 

If this article doesn’t satisfy your appetite for legal professional privilege, head over to the Law Council of Australia for further information: https://www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-and-ethics/client-legal-privilege

If you have any questions, you may contact us via the Rouse Lawyers website or call us on 07 3648 9900.

Disclaimer

The information contained on this website is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved.

Accordingly, the information on this site is provided with the understanding that the authors and publishers are not providing legal advice. As such, it should not be used as a substitute for consultation with professional legal advisers. Before making any decision or taking any action, you should consult with a professional lawyer from Rouse Lawyers.