When Can Legal Professional Privilege Be Broken?
Are there instances where legal professional privilege doesn’t apply? Find out here.
What is Legal Professional Privilege?
Legal professional privilege (also known as client legal privilege) essentially keeps the information you share with your lawyer confidential. The purpose of this is to enable you to disclose all the necessary information without worrying about someone using it against you. The Evidence Act 1995 (Cth) requires the communication made between you and your lawyer to be confidential and for the dominant purpose of seeking legal advice or use in legal proceedings. If you satisfy these requirements, legal professional privilege will apply.
The recent case of a lawyer turned police informant highlights the significance of maintaining this principle. ‘Lawyer X’ violated client privilege by sharing client information with the police, who used this to prosecute the individuals. Breaches such as these substantially undermine the integrity of the legal system and the rights it provides to citizens.
Generally speaking, most cases of privilege relate to claims made over documents, however, it does also apply to oral and electronic communication with your lawyer. For example, ASIC are taking legal action against law firm Clayton Utz in order to have them produce documents relating to AMP’s fees for no service scandal. Clayton Utz have previously resisted ASIC’s pursuit of these documents, claiming they fall under legal professional privilege with their client.
When Does It Not Apply?
Despite satisfying the requirements for legal professional privilege, there are instances where it will not apply.
Waiver of Privilege
Legal professional privilege aligns to you as the client in the relationship with your lawyer. This privilege can be waived if you are seen to be engaging in conduct that is inconsistent with the confidentiality your lawyer is trying to protect. Waiver of privilege can occur in two ways, these are express or implied. An express waiver is where you knowingly disclose the confidential information or communications, effectively losing your client privilege. Implied waiver involves going against the premise of confidentiality, even if you don’t intend to do so. References to legal advice in communications with a third party or wider audience may amount to an implied waiver. Essentially conduct that jeopardises the potential for communications to remain confidential may be seen as inconsistent in maintaining client privilege.
You will also lose legal professional privilege if your communications are in aid of illegal or improper behaviour. This is the case irrespective of whether the lawyer was aware of the intent to behave improperly.
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Chris is a member of the content team at Lawpath. He is currently studying a Bachelor of Business and Bachelor of Laws at UTS. He is interested in how marketing communication strategies can influence the future of the legal industry.