Legal professional privilege (‘LPP’) (or client legal privilege) is a fundamental principle of Australian law which protects communications between clients and their lawyers. Without LPP, the administration of justice would be compromised, and clients would not be able to seek proper legal advice without fearing disclosure of the instructions upon which the advice is based. However, LPP has exceptions which are important for both lawyers and clients to be aware of, otherwise they might run the risk of privileged information being disclosed against their will.
What is LPP?
The application of LPP is largely governed by sections 118 and 119 of the Evidence Act 1995 (NSW) and rule 9 of the Australian Solicitor’s Conduct Rules 2015 (NSW). LPP protects communications made between a lawyer and client where ‘the dominant purpose of these communications is for the giving or obtaining of legal advice’, or for use in current or anticipated litigation. The rationale behind this privilege is twofold:
- To protect the administration of justice.
The primary aim of LPP is to ensure that the legal system operates effectively and efficiently by allowing individuals to seek legal advice without interference. - To encourage full and frank communication between a lawyer and client.
The secondary aim of LPP is to encourage clients to feel protected as they communicate instructions to their legal representatives.
Privilege v Confidentiality
Although all communications between a lawyer and client are confidential, only some of those communications are privileged. In plain terms, privilege is a stronger form of confidentiality. Confidential information is susceptible to disclosure by compulsion (e.g. by subpoena), whereas privileged information is not. It is crucial for lawyers and clients to have a firm grasp on what information may be confidential and what information may be privileged so that the client’s interests can be properly protected.
Exceptions to LPP
LPP offers extensive protection to clients, but that is not to say that it is without exceptions. These exceptions are examined below and summarised in r 9 of the Australian Solicitor’s Conduct Rules 2015 (NSW). Some exceptions will require disclosure of privileged information, whereas others will simply permit a lawyer to disclosure the information.
- Waiver
The most common exception to LPP is where the client (the one to whom the privilege belongs) waives the privilege. This might be done explicitly or implicitly. The central test for whether privilege has been waived is whether the client has committed some act or engaged in conduct inconsistent with the maintenance of confidentiality over the information (Mann v Carnell (1999) 201 CLR 1). This might occur when the client hands over privileged communication to a third party or discloses the substance of the communication to a third party.
- Crime or Fraud
A solicitor may choose to disclose information which would otherwise be privileged in circumstances where the disclosure is for the sole purpose of avoiding the probable commission of a serious criminal offence. It is important to note that this does not apply to information concerning an offence which has already allegedly been committed.
- Dispute between Lawyer and Client
In circumstances where there is a dispute between a lawyer and a client, privilege may be deemed to have been lifted so that a court is properly equipped to deal with the dispute. For example, where a client has suggested that a lawyer has engaged in professional misconduct on unsatisfactory professional conduct, or there is a dispute about legal fees, a court may order those privileged communications be disclosed to properly assess the competency of advice provided to a client by the lawyer.
- Statutory Overrides
Finally, there are limited exceptions to LPP contained in legislation. One example is contained in s 192 of the Australian Securities and Investments Act 2001 (Cth).
Importance of Understanding LPP
Understanding LPP is crucial for both clients and lawyers.
Clients should be aware of their rights and the importance of maintaining confidentiality. Without a proper understanding of LPP, a client may unknowingly waive privilege and act against their own interests. This may also put lawyers in the uncomfortable position of being compelled to provide information, which was once privileged, despite such disclosure being against their client’s interests.
Lawyers should also be well-informed as to the application of LPP so that they can properly balance their duty to protect client confidentiality with their professional obligations.
Conclusion
LPP is a cornerstone of the Australian legal system. It promotes open communications between lawyers and clients by fostering trust and ensuring the effective administration of justice.
LPP is a powerful tool for protecting confidential information but should not be considered a ‘bulletproof’ mechanism for concealing information between a lawyer and client.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
Ben Woodward
Hugo Law Group
Sydney
