Thursday, 4 June 2015

Give me that document! An overview of legal professional privilege

All information that a lawyer receives from a client is considered to be ‘confidential’.  Some of that information is also considered ‘privileged’.  Legal professional privilege is an important area of the law and one that frequently surfaces in practice.  Over the coming weeks, we will take a closer look at the doctrine of legal professional privilege.

Legal professional privilege covers confidential communications between the lawyer and the client made for the dominant purpose of advice or for use in anticipated or existing litigation.  For documents, the privilege only exists in circumstances where they are brought into existence for the dominant purpose of giving advice or for litigation.  For example the privilege does not encompass documents that are used to evidence transactions, but does extend to material gathered by the lawyer or client in preparation for litigation, even if that material does not constitute ‘communication’ in the strict sense.  The only body that has power to inspect documents for which legal professional privilege is claimed is a court, unless legislation expressly and unambiguously provides otherwise.

The first point to note about client legal professional privilege is that it is much narrower than the general duty of confidentiality.  The duty of confidentiality attaches to any information received by a lawyer in the course of legal practice.  Legal professional privilege, on the other hand, only attaches to communications made either for the dominant purpose of giving of advice or for use in anticipated or existing litigation.

Secondly, legal professional privilege is much stronger than the duty of confidentiality.  A lawyer’s duty of confidentiality may be secondary to some legally authorised direction or requirement to disclose the information.  Such a direction or requirement will immediately override the duty of confidentiality owed to the client.  The duty to maintain privilege, however, is maintained unless a statute expressly and unambiguously abrogates the privilege itself.

A practical example of legal professional privilege

A good example of the difference between confidentiality and legal professional privilege is a search warrant.  A warrant issued under the Crimes Act 1914 (Cth) (Crimes Act) can empower a police officer to search a lawyer’s premises and to seize any documents listed in the warrant.  Without the warrant, the lawyer does not need to hand the police officer any documents and to do so would be in breach of their general duty of confidentiality.  However, the warrant is a legally authorised direction to disclose the documents and overrides the general duty of confidentiality meaning the document must be disclosed to the police officer if they are referred to in the warrant.

Conversely, if a particular document is subject to privilege the lawyer cannot, without the client’s consent, lawfully hand those documents to the police officer - even if they are referred to in the warrant.  The privilege must be abrogated clearly and unmistakably by the statute.  In this example, the Crimes Act does not abrogate the client privilege.  The privilege overrides the warrant so documents subject to privilege, even if specifically mentioned in a warrant, cannot and should not be handed over to the police. 

Indeed, it is unlawful to disclose privileged material to the police unless the client waives the privilege.  It is the client’s privilege and only the client can lawfully waive this right; a lawyer cannot waive the privilege. 

Why do we have legal professional privilege?

Legal professional privilege exists to serve the public interest in the administration of justice, with the general idea being that the law should create conditions that encourage clients to fully and frankly disclose all relevant information to their legal representatives.  That puts the lawyer in the best possible position to sift through the relevant facts and to present a relevant, truthful account of the client’s case to the court.  The doctrine has been described as a conflict between maintaining the confidence of communications between lawyer and client and the principle that all relevant evidence be available to resolve the issues for decision in litigation.  Legal professional privilege has been described as an important civil right which is to be defended by the law.

What is protected by legal professional privilege?

There are three elements of client privilege:
  • the first is that the purpose of the communication must be for the giving of legal advice or litigation.  The giving of advice or involvement in litigation must be the dominant purpose of the communication
  • second, the communication between lawyer and client must be confidential in the sense that it has not already been disclosed to others, and
  • third, the communication must be between a client and his or her lawyer (i.e. a barrister or a solicitor) acting in their professional capacity as the client’s lawyer.  The privilege will not apply if the lawyer is acting as a commercial or business adviser. 
It is important to keep the need to maintain privilege (and confidentiality) in mind when obtaining, and receiving, legal advice and to make sure that the privilege is not inadvertently waived.  We take a closer look at this issue in our next article.

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