Client legal privilege (CLP) (also referred to as legal professional privilege) is a rule of law that protects the confidentiality of communications made between a lawyer and his or her client. It applies to confidential communications between a legal adviser and a client where the dominant purpose of the communication is seeking legal advice and litigation. 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.

Evidence Act

Sections 118 and 119 of the Evidence Act 1995 (Cth) (the Act) provide that confidential communications created for the dominant purpose of providing legal advice or litigation are protected from disclosure to federal courts.

For a communication to be the subject of client legal privilege, it must:

  • be confidential;
  • be made in the course of lawyer-client relationship; and
  • be made for the dominant purpose of:
    a) seeking or providing legal advice; or
    b) for use in existing or anticipated legal proceedings.

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 at the time legal proceedings are genuinely contemplated.

The dominant purpose test was affirmed in Esso Australia Resources v Commissioner of Taxation [1999] HCA 67, which specified that the dominant purpose is to be determined objectively. A test has to balance both the need to protect lawyer-client communication and the efficient administration of justice.

Waiver of Privilege

Client legal privilege attaches to the client and can only be waived by the client. Client legal privilege may be waived by doing something inconsistent with the confidentiality the privilege is supposed to protect. Under Section 122(3) of the Act, CLP will be waived if:

  • the client or party knowingly and voluntarily disclosed the substance of the evidence to another person; or
  • the substance of the evidence has been disclosed with the express or implied consent of the client or party.

Conclusion

Legal professional privilege is a difficult area of the law. LegalVision can assist you with understanding your rights under client legal privilege. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote to work with a litigation lawyer.

Lachlan McKnight

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