Confidentiality in Law: Legal Professional Privilege/Client Legal Privilege
Introduction
Legal professional privilege, often sometimes referred to as client legal privilege, is the right to confidentiality between a client and their lawyer. This right of confidentiality covers any documents that would constitute, record or otherwise disclose a communication that meets all the requirements for the privilege to arise.
What exactly is client legal privilege?
This right of confidentiality means that certain communications between a client and their lawyer cannot be disclosed, nor can the court compel a lawyer to disclose those communications without the consent of their client. This way, communications between client and lawyer are kept confidential.
However, it’s important to stress that this right to confidentiality does not apply to any communication between a client and lawyer. As mentioned previously, there are certain requirements to be met for this privilege to arise.
When does client legal privilege arise?
For client legal privilege to arise, there are three key requirements that must first be met:
There must be a lawyer client relationship.
This seems simple, but establishing this relationship before any communication or advice is provided is important to ensuring confidential information shared between client and lawyer is kept confidential.The communication or document must be confidential in nature.
There’s no set definition as to what ‘confidential’ actually means, however, in determining whether the communication or document is confidential, factors such as who it was distributed to, its purpose and what statements were made about it will be considered.The communication or document must have been prepared for the dominant purpose of providing legal advice to the client or to be used in legal proceedings.
Dominant purpose means the means the most significant overall purpose of the discussion. Legal advice is not just advice concerning the law but includes advice on what should be done in a legal context.
What are the exceptions to client legal privilege?
The claim for privilege over communications and documents applies in almost every circumstance, however, there are exceptions to the rule in the following situations:
If the document or communication was made to assist in illegal or fraudulent activities.
A lawyer cannot keep everything shared with them confidential, especially in relation to illegal acts or crimes. A lawyer’s most important duty is to the court and the administration of justice first, and then to their client.If the claim is intended to abuse statutory power or frustrate the legal system.
In rare cases, the right to the privilege may be waived for specific investigations, such as royal commissions, if it is deemed absolutely necessary.
In investigations into matters concerning accountability, corruption or other mechanisms necessary for open government.
Some commonwealth agencies or regulatory bodies, such as the Commonwealth Ombudsman or the Australian Taxation Office, can override a claim for privilege in relation to these investigations.
Conclusion
By keeping information confidential, client legal privilege encourages open and honest communication between lawyer and client, ensuring the best possible approach is taken in the course of the administration of justice.
To learn more about any of the matters discussed here, or if you require legal assistance, please contact Chris Moshidis, Director and Principal Lawyer on +61 3 9521 7956 or chris@urbanlawyers.com.au.