Client Legal Privilege
Client legal privilege, also known as legal professional privilege, is a common law right that allows a person to obtain confidential legal advice. The privilege protects legal advice given (advice privilege) and communications that relate to potential litigation (litigation privilege). Legal professional privilege belongs to the client, not to the lawyer. Information that is covered by client legal privilege may only be disclosed if the client clearly instructs the lawyer to do so. The privilege exists both to protect the rights of legal clients and to facilitate the administration of justice.
The client’s rights
“That general principle represents some protection of the citizen – particularly the weak, the unintelligent and the ill-informed citizen – against the leviathan of the modern state. Without it, there can be no assurance that those in need of independent legal advice to cope with the demands and intricacies of modern law will be able to obtain it without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents.”
In other words, lawyer-client privilege must exist so that individuals can understand and negotiate their position in the legal system. If we did not have client legal privilege, it is likely that people would be reluctant to seek legal advice. The right to confidential legal advice is sometimes classified as a human right.
The administration of justice
Legal professional privilege is crucial to the legal system in Australia. The administration of justice requires clients to be able to speak freely with the lawyers, disclosing everything that is relevant to the advice they are seeking. Without the privilege, legal proceedings could be delayed or miscarried as legal practitioners could be unable to properly represent clients and bring relevant matters before the courts. People need to be able to seek legal advice about their affairs and to disclose all the relevant facts when doing so. This is in the interests of society.
Lawyers must encourage compliance with the law as their paramount duty is to the courts and the administration of justice. They also play an important role by advising clients about their legal obligations and identifying potential breaches.
The common law right to client legal privilege is set out in the Commonwealth Evidence Act 1995. Section 118 of the Act provides that evidence is not to be given if adducing it would result in disclosure of:
- A confidential communication between client and lawyer; or
- A confidential communication between lawyers acting for the client; or
- The contents of a confidential document (whether delivered or not) prepared by the client or the lawyer
for the dominant purpose of the lawyer/s providing legal advice to the client.
A client may object under section 119 to evidence being adduced if it would result in any of the above being disclosed.
What does client legal privilege mean?
Client legal privilege means that confidential communications between lawyers and clients cannot be compulsorily produced in court or in response to a subpoena. It also means that a lawyer is not allowed disclose privileged information to a third party unless specifically authorised by the client to do so, or unless privilege has been lost, waived or does not apply.
Exceptions to client legal privilege
Legal professional privilege is lost, waived or does not apply in several situations.
Client waives privilege
Client legal privilege can be waived by a client expressly or implicitly.
An example of an express waiver of client privilege is where a client provides consent for their information to be disclosed to a third party, such as a psychologist or psychiatrist. Another example of this is when a client authorises their lawyer to provide their information to a rehabilitation facility to seek a place for the client in a program.
An implied waiver of privilege may occur where a client acts in a way that is inconsistent with the information being privileged, such as by speaking publicly about it.
Privilege can also be waived where a client argues that they relied on legal advice provided. In this situation, the court must consider the legal advice that was given.
It is posible for legislation to alter or remove client legal privilege.
Client legal privilege does not cover communications made for illegal or improper purposes.
If you require legal advice or assistance in any legal matter please contact Armstrong Legal.