In Short
- Client legal privilege protects confidential communications between a lawyer and their client.
- It ensures open communication and encourages full disclosure without fear of exposure.
- Privilege can only be waived by the client, either explicitly or by disclosing the information.
Tips for Businesses
To maintain client legal privilege, ensure that all communications with your lawyer are clearly marked as confidential. Be cautious when sharing privileged information with others, as this could waive the protection. Using secure communication methods and educating your team about privilege is crucial to avoid unintentional disclosure.
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Client legal privilege (also referred to as legal professional privilege) is a fundamental rule of law that protects the confidentiality of communications made between a lawyer and their client, where the dominant purpose of the communication is seeking legal advice. This article aims to explain client legal privilege and its scope, limitations and significance.
What is Client Legal Privilege?
Client legal privilege is a legal concept that protects certain communications between a client and their lawyer from being disclosed to third parties. Its primary purpose is to encourage full and frank communication, enabling the lawyer to provide the best possible legal advice and representation. Client legal privilege encourages open and honest communication between clients and their lawyers. It covers lawyers and their employees, oral communications, and documents.
It is called ‘client legal privilege’ because the privilege belongs to the client and not the lawyer. A lawyer may only disclose privileged communications if clearly instructed to do so by a client.
The Importance of Client Legal Privilege
Client legal privilege plays a crucial role in maintaining the integrity and effectiveness of legal representation. Its importance is evident in its impact on promoting honest communication, ensuring effective representation, and protecting clients. Some benefits include that:
- clients are more likely to disclose all relevant information without fear of exposure by promoting honest communication; and
- lawyers are able to provide more accurate and comprehensive legal advice.
Evidence Act
Sections 118 and 119 of the Evidence Act 1995 (Cth) (the Act) protect confidential communications with the purpose of providing legal advice or litigation from disclosure to the federal courts.
Specifically, for a communication to be subject to client legal privilege, it must be:
- confidential;
- made in the course of lawyer-client relationship; and
- made for the dominant purpose of seeking or providing legal advice or for use in existing or anticipated legal proceedings.
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Expert Witnesses and Dominant Purpose
When experts are engaged to advise clients and their lawyers and to prepare reports, confidential communications between those parties will be caught by litigation privilege. This is provided that:
- the content of the confidential communication has a dominant purpose connected with the litigation; and
- it occurs when the client is genuinely contemplating legal proceedings.
The High Court affirmed the dominant purpose test in Esso Australia Resources v Commissioner of Taxation [1999] HCA 67 and stated that it requires an objective determination. The test must balance the need to protect lawyer-client communication and the efficient administration of justice.
Challenges for Maintaining Client Legal Privilege
The rise of digital communication can present challenges for maintaining client privilege. Emails, text messages and other electronic forms of communication must be handled with care to ensure confidentiality. Additionally, it is crucial that high cybersecurity measures are implemented to ensure privileged communications remain confidential. Addressing challenges requires a proactive and informed approach, as well as maintaining vigilance.
Best Practices for Maintaining Client Legal Privilege
To safeguard client legal privilege as a lawyer, you should:
- label communications as privileged and confidential where appropriate;
- ensure that clients and all relevant staff understand the importance of maintaining confidentiality;
- ensure that you use secure forms to move and access sensitive client information;
- limit sharing privileged information unless absolutely necessary.
Key Takeaways
Legal professional privilege is a difficult area of the law. The importance of client legal privilege cannot be overstated. It is integral to promoting honest and open communication between clients and their lawyers, ensuring effective legal representation, and protecting the fundamental rights of clients within the legal system.
If you are concerned about client legal privilege, our experienced litigation lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1800 532 904 or visit our membership page.
Frequently Asked Questions
Client legal privilege can cease if the client voluntarily discloses the confidential information to someone else, or if the lawyer shares it with another person with the client’s express or implied consent.
Client legal privilege protects communications between a lawyer and their client from being disclosed to third parties. Its purpose is to encourage open and honest discussions, ensuring lawyers can provide the best possible legal advice.
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