Legal professional privilege - what is it and when does it apply?
The concept of legal professional privilege (or, LPP for short and also sometimes referred to as client legal privilege) has been in the news a lot over recent times. You only need to think about Victorian barrister Nicole Gobbo (“lawyer X”) – LPP was much talked about in the Royal Commission into the use of police sources and her life and times have even being made into a TV show. Part of what was called into question was whether or not the information she provided was subject to LPP and importantly, whether her clients’ rights to a fair trial were compromised because of the information she was providing to police.
So what is LPP? How does it work and when does it apply?
What is legal professional privilege?
Lawyers and their clients share a special relationship similar to that enjoyed by a patient and their doctor. It’s what’s called a fiduciary relationship, which means that it is a relationship based on trust. What it boils down to is that the client places their trust in the solicitor to provide advice and that trust means that the solicitor has specific legal duties to the client. Those duties include that the solicitor must act in the best interests of their client (subject to the solicitor’s paramount duty to the court).
Duties
One of the many duties that a solicitor has towards their clients is to maintain confidentiality. This is where LPP comes in because a confidential relationship is the central component of privilege. The privilege of having confidential communication between the lawyer and client rests with the client. What this means is that (subject to certain legal exceptions), it’s the client who enjoys that right.
The purpose of LPP is that it allows clients to provide full and complete instructions to their solicitor without the fear that their conversations or other communications will be disclosed. This concept has been developed over hundreds of years in the common law is also protected by statute thanks to sections 117, 118 and 119 of theEvidence Act 1995.
Generally speaking, there are two types of LPP – “advice” privilege and “litigation” privilege.
Advice privilege
Advice privilege covers situations where the dominant or main purpose of the communication is for the lawyer to provide advice to the client. For example, a client might come to a criminal defence lawyer for advice about whether they should attend a police station to do a record of interview about drug possession. The conversation and any documents exchanged between the lawyer and client for the purpose of that advice, like emails, text messages and letters will be covered by LPP. This will include what the client tells the lawyer about the circumstances of the drug allegation and what they say happened. So, what this means is that the lawyers can’t disclose what was talked about or what the documents say, or hand over the documents to another person, without the consent of the client.
Litigation privilege
The second type of privilege is where a lawyer and their client have communications about existing or anticipated legal proceedings – or – litigation. So to use the example from above, the client has now been charged with drug possession or another offence and comes to a criminal defence lawyer for representation at court. The conversations between the lawyer and the client and any documents prepared to assist in the litigation, cannot be disclosed by the lawyer without the client’s consent.
Importantly, both types of privilege can cover a variety of communication styles such as a conversation between a lawyer and their client, letters, emails or text messages between a lawyer and their client and can even cover some third party communications, such as those had with an expert, like a forensic psychologist who’s providing a report.
Dominant purpose test
Both types of privilege require that the communication in question, regardless of what form it takes, was made for the “dominant purpose” of giving legal advice.
When a person argues that something is protected by privilege, it’s the responsibility of the person making that claim to show that the communication is privileged. This will require the person to establish that the communication was made for the dominant purpose of providing/receiving legal advice. If the court is convinced of that, it shouldn’t be allowed to be used as evidence.
But how did you establish this?
The test for dominant purpose is essentially to ask: would the communication have been made or the document prepared even if that dominant purpose hadn’t existed? If the answer is ‘yes’, the test isn’t satisfied. If the answer is ‘no’, the test will be satisfied.
An important quirk of the dominant purpose test and privilege in general, is that if a document or communication contains both legal and non-legal advice, the portion containing the legal advice will be privileged and the portion containing the non-legal advice will not be.
Loss of privilege
Despite LPP being a vital component of our legal system, there are some situations where it won’t apply. Sections 121 to 126 of the Evidence Act set out which situations privilege will not apply.
Some of the more common situations are:
Where the client waives privilege (either an express waiver or an implied one);
Where the communication was made to facilitate an illegal purpose;
When the client passes away;
When the breaching of privilege is necessary to allow a court to enforce a court order; and
A statutory exemption like the one contained in section 192 of the Australian Securities and Investments Act 2001 (Cth).
Waiving privilege
One of the more common ways that privilege is lost is when the client waives privilege – or in other words – consents. That consent can be either be express – so, where a client writes to the lawyer saying, “I give consent to you to disclose that document” – or implied – so, through their words or actions.
Express waiver
In this scenario, it’s clear to everyone that privilege no longer exists. There are lots of reasons why a client might choose to do this but usually it’s because they believe that the information they want to disclose will assist them in their case. One example is where a person has entered a plea of guilty to an offence but later wants to enter a plea of not guilty. When this happens, it’s usually the case that the person has to change lawyers and the first lawyer is asked by the prosecution to disclose the contents of their file so that the court can determine whether the person can change their plea. The first lawyer can only do this where the client has provided their consent.
Implied waiver
Where things start to become a bit trickier, is when there is a suggestion that a client has implied that they want to waive privilege. When there’s an argument about whether there is an implied waiver, the court will generally look at the client’s actions to figure it out.
This is less common in criminal matters and it occurs more often in civil matters.
What’s the takeaway?
The key takeaway here is that conversations with your lawyer should be confidential. In criminal matters, this means what a client tells their criminal defence lawyer stays between them unless the client consents. It’s often the case that clients have their family members involved in their matter to provide support – and this is great – but it’s important to remember, especially for the family members, that the lawyer won’t be able to discuss the case with them without the client’s consent.
Above all, the relationship between a lawyer and their client is hugely important given it’s established in trust. This is particularly so in criminal matters where the outcome can have a major impact on yours and your family’s lives. Read more if you want to learn more about what to look out for when you’re choosing a criminal defence lawyer. Or if you’d like to know more about what we do to help our clients and how we do things differently at Kingston Fox Lawyers.
This is a summary only and does not constitute legal advice. If you would like to know more or want to speak to one of our lawyers, click on the button below.
