Legal Professional Privilege (LPP) under Australian law will protect confidential communications between a lawyer and client if the communications were made to give legal advice or contemplate litigation. It is a privilege of the client, not of the lawyer, and extends beyond the end of the professional relationship.
LPP: Safeguarding client secrets
Legal Professional Privilege is a legal principle designed to protect confidential communications between clients and their legal advisers. LPP gives the client an assurance of full and frank disclosure of their case to the lawyer without any apprehension that their communication may be given out to a third party or used against them in court. LPP finds its origins both in common law and under statute, the latter, notably in the Uniform Evidence Act (UEA), which governs privilege in various Australian jurisdictions. The Uniform Evidence Act (UEA) governs the admissibility of evidence, including privileged communications in some jurisdictions, while in other states or contexts, LPP may still be governed by common law principles.
The main types of communications covered under LPP include two types, namely
1. Advice Limb: Those communications made with the dominant purpose of either seeking or providing legal advice.
2. Litigation Limb: These are communications made that concern either actual or reasonably contemplated litigation.
However, it is important to note that LPP extends protection only to communications and not to the underlying facts. For example, if a lawyer observes a fact in the course of providing legal advice, the fact itself is not privileged, though the communication about it may be.
Legal and professional obligations of lawyers
The lawyer is restricted by laws and ethics from divulging communications made by their client. In Australia, during the representation of a client, a lawyer owes a duty of confidentiality under the Solicitors’ Conduct Rules and must not disclose any such information except in very rare circumstances.
Dominant purpose: The threshold for privilege
LPP applies when the communication has been made with the dominant purpose of obtaining legal advice or for the dominant purpose of conducting litigation. What constitutes this dominant purpose is usually an involved fact-dependent determination. The courts will consider the intent of the communication, including the state of mind of the attorney, client, or in some instances a third-party contributor. LPP will not apply if the dominant purpose of the communication is not to seek or provide legal advice or in contemplation of litigation. For example, communications between a lawyer and a client that involve giving routine business advice or commercial discussions will not receive the protection of LPP.
LPP in corporate and in-house legal practice
While the principles of LPP are well-developed in private legal practitioners, the principles within an in-house legal advice context are equally important. Just like external colleagues, in-house lawyers have to provide independent legal advice to the employer. If the communications for in-house are to be protected under LPP, advice given shall still be in the capacity of a lawyer and not in an executive or commercial role.
Whether or not the privilege will be applicable for communications with an in-house attorney will depend on a number of factors including:
• Determination of the in-house lawyer’s possession of a valid practicing certificate .
• What their contract of employment says.
• The position of in-house counsel within the organization’s hierarchy .
Whether remuneration is linked to the performance of the company as a whole, may jeopardise their independence.
The courts will scrutinise in-house counsel communications to ensure they are independent and legal, not commercial, or the privilege may be lost.
Waiver of privilege: Inadvertent disclosure
The privilege in LPP is of great value but it might also be waived-explicitly or implicitly. Explicit waiver occurs when the client knowingly discloses privileged information to any third party, or consent has been provided for disclosure. Implicit waiver occurs where there is any conduct by the client that is inconsistent with maintaining the privilege, as in disclosing portions of a privileged document that disclose the gist of communication.
Many times, the issue of unintentional disclosure arises. If privilege materials are accidentally exposed to the opposing party during discovery, the courts employ standards to assess if the privilege is waived. GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123 addressed the unintended disclosure issue and advised lawyers to utilise materials carefully to avoid waiving privilege.
Consequences of breach of confidence
Breach of client confidentiality by a lawyer may result in serious professional and legal consequences. Failure to protect privileged communications may invite disciplinary charges from either the Law Society or the Legal Services Board. These may include:
• Revocation or suspension of the practice license.
• Monetary sanctions or penalties.
• A bad professional history ruling that could hurt one’s career and reputation.
In severe cases, a breach of confidentiality leads to civil liability in which clients may seek redress for losses occasioned by such breach. If a lawyer breaches the confidentiality rule and discloses privileged knowledge to commit fraud or other crimes, he may be criminally accountable.
Protecting privilege in practice
In practice, of course, lawyers have to be careful lest they inadvertently waive LPP. Lawyers must follow certain procedures when subpoenaed. The LIV recommends sealing sensitive papers with a letter declaring that privilege is not waived even if subpoenaed. This is to ensure that privileged documents remain privileged during court litigation.
Counsel parties must tacitly promise the court not to utilise forcefully obtained papers for any purpose other than those admitted. Following the above principles is mandatory. Failure of the same may invite contempt of court.
Balancing confidentiality and legal obligations
Confidentiality and privilege, a legal and ethical requirement of the lawyer-client relationship, are crucial to the legal profession’s credibility. He protects the client’s rights and serves justice by doing so.
Lawyers must walk a narrow line between protected communications and legal obligations. A breach of this would not come with insignificant consequences; possible disciplinary actions and civil or criminal liabilities flowing thereof.
Staying updated on legal and ethical standards is essential, with resources such as legal CPD webinars and superannuation webinars offering valuable insights into best practices for lawyers in safeguarding client confidentiality.
Maintaining client confidentiality while satisfying legal requirements demands ongoing vigilance, professional standards, and a clear awareness of LPP’s legal role.
