What is Legal Professional Privilege?

by Greg Carter, Fixed-Fee Litigation Lawyer

Legal professional privilege, also called ‘client legal privilege’, is a fundamental legal rule which prevents disclosure of confidential communications (usually documents) between a lawyer and a client.

The rule applies to:

  1. Confidential communications between a lawyer and client made for the dominant purpose of giving or obtaining legal advice;
  1. Confidential communications between a lawyer and client made for the dominant purpose of existing or anticipated litigation.

The purpose of the rule is to promote the public interest in the administration of justice, by facilitating open and frank communications between lawyers and their clients.

The rule is commonly invoked to prevent the disclosure of legally privileged documents in legal proceedings.

Here is some additional guidance:

  • The party claiming the benefit of the privilege has the onus of proving that the privilege applies. This will generally require evidence by way of affidavit regarding the circumstances in which the document was brought into existence, and the purposes of the person who created the document
  • A ‘dominant’ purpose is one that predominates over other purposes – it is the prevailing or paramount purpose
  • A good starting point is to ask: what was the intended use(s) of the document which explain why it was brought into existence
  • The concept of legal advice is fairly wide, and covers professional advice regarding what a party should prudently or sensibly do in the relevant legal context, but it does not cover advice that is purely commercial or of a public relations character
  • Subject to meeting the dominant purpose test, the privilege applies to documents that record legal work carried out by the lawyer for the benefit of the client, whether or not the documents are provided to the client
  • The privilege also applies to documents made by officers and employees of the client that contain information sought by the client’s lawyer to enable him or her to advise, whether or not such documents are communicated to the lawyer

It is important to note that the privilege can easily be lost (‘waived’) in a wide variety of circumstances, if the party claiming privilege acts inconsistently with the maintenance of confidentiality in the communication.

For example the privilege can be waived if the content of legal advice received by a client is communicated to another party.

Sometimes the waiver of legal professional privilege can have catastrophic consequences for a case, because the communications which must be disclosed to another party may reveal matters that seriously undermine the case.

Please contact me if you would like advice on legal professional privilege.

Greg Carter is a freelance litigation lawyer based in Perth, specialising in fixed-fee commercial dispute resolution.

Greg offers a free consultation and a ‘no obligation’ quotation.

For more information please call Greg on 0422 406 929 or email gc@gregcarter.com.au.

Or see his website www.gregcarter.com.au.



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