Waiving Legal Professional Privilege

Legal professional privilege protects communications between a lawyer and a client from compulsory disclosure. This means that a lawyer who knows facts that are relevant to a proceeding is not a compellable witness in that proceeding to the extent that legal professional privilege applies to them. In some circumstances, a client may choose to waive the legal professional privilege that would otherwise be owed to them by their lawyer. This article explores the issue of waiving legal professional privilege.

Legal Professional Privilege: the Evidence Act

Sections 118 and 119 of the Evidence Act 1995 set out privilege with respect to legal advice and litigation.

Legal advice

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. a confidential communication made between the client and a lawyer; or
2. a confidential communicationmade between 2 or more lawyers acting for the client; or
3. the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person;

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

1. a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
2. the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

Three ways of waiving legal professional privilege

There are three different ways of waiving legal professional privilege. This can be done expressly, it can be an implied waiver or it an be an inadvertent waiver.

Express waiver

An example of express waiver is a blatant disclosure or consent to a disclosure of privileged information by a client, legal privilege holder or a party. Implied waiver occurs with the holder of the legal privilege acts in a manner that is inconsistent with the maintenance of privilege. The determination of whether the behaviour is inconsistet with the maintenance of confidentiality is dependant on the circumstances of the case and any questions of waiver are a matter of fact and degree.

Inconsistent conduct can occur where a party expressly refers to legal advice (or the substance or gists of it) as justification or explanation for their conduct, a court is likely to form the view that it is not permissible for the client to simultaneously withhold the advice from disclosure.

Implied waiver

Some examples of cases where a party has been found to have implicitly waived their privilege are as follows:

• In the case of Switchcorp Pty Ltd v Multimedia Ltd [2005] VSC 425, the following statement was release to the market by a company, “The Board’s lawyers have been instructed to vigorously defend the claim and have advised that the plaintiff’s claim will not succeed.”
• In the case of Ampolex Ltd v Perpetual Trustees Co (Canberra) Ltd (1996) 40 NSWLR 12, during a commercial dispute, a party indicated that they had received “legal advice supporting this position.”

Inadvertant waiver

It is critical that solicitors and clients be mindful that they do not accidentally engage in conduct that could lead to the loss of legal privilege. Legal privilege can be inadvertantly lost in several way.

• Evidence adduced with consent

Where evidence that would be considered to be privileged is adduced with the consent of the client or the party concerned, this can lead to an implicit waiving of legal professional privilege.

• Client has acted inconsistently with objecting to the evidenc being adduced

The legislation does not prevent the adducing of evidence if the client or a party has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence as it would result. A client or party is taken to have acted in this manner if the client or party knowingly and voluntarily discloses the substance of the evidence to another person or if the substance of the evidence has been disclosed with the express or implied consent of the client or party.

• Acts that attract civil penalties

There is also no legal privilege in relation to communications or documents that have been made or prepared by a client, lawyer or party in the furtherance of an act that renders a person liable to a civil penalty.

An inadvertent waiver of privilege is determined by an objective test and bo considering whether a reasonable person would realise there had been a mistake.

The 2011 case of Fenwick v Wambo Coal Pty Ltd (No2) NSW is an example of a case where substantive legal advice was disclosed. During the discovery process in this matter, the defendants found a draft letter from the defendant to the plaintiff which referred to legal advice. The draft letter was never sent by the defendant, but it was produced for inspection based on the view that as a result of this conduct, it was no longer considered privileged. The defendant was not able to argue that the production of the document was inadvertent or unintentional or a mistake.  The Judge determined the draft letter disclosure the conclusion of the legal advice received by the defendant but also the reasoning behind such conclusions of the advice and there had been a disclosure of the substance of the legal advice received by the defendant. Therefore, privilege had been waived.

Will an implied or inadvertant disclosure be remedied?

An error with respect to an implied or inadvertent waiver will only be remedied by the courts if the client or party or privilege holder has acted promptly to try to remedy the error.

It is imperative that when drafting affidavits or correspondence in legal disputes that you exercise caution when framing any statement that refers to advice or prior interactions with a solicitor and take extreme care to ensure nothing in correspondence could amount to an inadvertent waiver of privilege. Releasing documents in your legal matter to family and friends is likely to result in a waiver of legal privilege and could have serious repercussions to your case.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.