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 communications that relate to potential litigation (litigation privilege) and legal advice given (advice privilege). It protects the rights of legal clients and facilitates the administration of justice.

Client legal privilege belongs not to the lawyer but to the client. Information covered by client legal privilege may only be disclosed if the client instructs the lawyer to do so.

The Client’s Rights

Lawyer-client privilege is based on the right to privacy and protection from the state. In the 1983 High Court decision of Baker v Campbell, Dean J said:

“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.”

Lawyer-client privilege exists so that clients can negotiate and understand their position in the legal system. If it did not exist, people would be more 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 Australian legal system. The administration of justice requires clients to be able to speak freely to their lawyer and to disclose everything relevant to the advice they seek. It is in society’s interests that people can disclose all the relevant facts when seeking legal advice. Without legal professional privilege, legal proceedings could be miscarried or delayed as lawyers may be unable to properly represent clients and bring relevant matters before the courts.

Lawyers must encourage compliance with the law as their paramount duty is to the courts and the administration of justice. Their role includes advising clients about their legal obligations and identifying potential breaches.

Legislation

Section 118 of the Evidence Act 1995 (Cth) sets out the common law right to client legal privilege. It provides that evidence is not to be given if adducing it would result in disclosure of:

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

for the dominant purpose of a lawyer providing legal advice to a client.

Section 119 of the Evidence Act provides that a client may object 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:

1. confidential communications between clients and lawyers cannot be compulsorily produced in court or in response to a subpoena; and
2. a lawyer may not disclose privileged information to a third party unless specifically authorised by the client to do so, or unless privilege has been waived, lost, or does not apply.

Exceptions to client legal privilege

A client can implicitly or expressly waive client legal privilege.

Examples of an express waiver of client privilege include:

1. when a client seeking a place in a rehabilitation program authorises their lawyer to provide their information to the rehabilitation facility; or
   1. where a client consent to their information being disclosed to a third party, such as a psychiatrist or psychologist.

Examples of an implied waiver of privilege include:

• where a client acts in a way that is inconsistent with the information being privileged, such as by speaking publicly about it; or
  • where a client argues that they relied on legal advice provided (as the court must consider the legal advice given).

Illegal purposes

Client legal privilege does not cover communications made for improper or illegal purposes.

Statutory exclusions

Legislation can alter or remove client legal privilege.

Where to now?

Contact us for legal advice or assistance regarding client legal privilege.