Legal professional privilege protects confidential communications between a lawyer and client that are made for the dominant purpose of obtaining or providing legal advice, or for use in actual or anticipated legal proceedings. Unlike a general duty of confidentiality, legal professional privilege allows clients to resist disclosure of protected communications in court proceedings. The protection can also extend to certain communications involving third parties where they are created for the dominant purpose of obtaining legal advice or legal services.
What is legal professional privilege and when are communications between a lawyer and client protected from disclosure?
Our Commercial Team explains
Summary
This article explains how legal professional privilege protects certain confidential communications between lawyers and their clients in Australia. It outlines the requirements for privilege to apply, the dominant purpose test, how legal professional privilege differs from general confidentiality, and when communications involving third parties may also be protected.
Legal professional privilege and confidential communications
In July last year the Sunday Times revealed J.K Rowling as the author behind the pseudonym Robert Galbraith. Whilst there was speculation that it was a publicity stunt the real source behind the leak was in fact Rowling’s lawyer. This incident highlighted the issue of legal professional privilege and the type of communication between a client and lawyer that will be considered privileged.
How is legal professional privilege recognised in Australia?
In Australia, legal professional privilege is based in both common law and legislation. Sections 118 and 119 of the Evidence Act 1995 (Cth) state that confidential communications created for the dominant purpose of providing legal advice or litigation are protected from disclosure to federal courts.
What is Legal Professional Privilege?
There are many relationships in society where there is a general duty to maintain confidentiality – doctor and patient, psychotherapist and patient, social worker and client, journalist and source and priest and penitent (the so called confessional confidentiality). In all of these cases the court will consider all the circumstances in which a communication was made, and balance the need for confidentiality against the need for disclosure.
How is legal professional privilege different from confidentiality?
Legal professional privilege applies to the relationship between a lawyer and their client and is different to a general duty to maintain confidentiality. The effect of legal professional privilege is that certain communications between a lawyer and a client and/or material prepared for a case are privileged and are not required to be disclosed. Legal professional privilege is a privilege claimed by the client (not the lawyer) to keep communications for the purpose of giving or obtaining legal advice and/or providing legal services confidential.
What type of communication is privileged?
Some of the circumstances that must be present to establish that a communication is privileged include;
- There must be a lawyer-client relationship;
- The privilege must be claimed for confidential communication between client and lawyer; and
- The communication must be made for the dominant purpose of obtaining or giving legal advice, or for providing legal services in respect of actual or anticipated legal proceedings.
What is the dominant purpose test?
The dominant purpose test was held to be the test for legal professional privilege in Esso Australia Resources Ltd v Commissioner of Taxation. The purpose of the communication is examined and not the specific information it contains. Legal professional privilege will exist between a client and his or her lawyer in relation to all communications made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.
Can communications with third parties be privileged?
Communications with a third party can also attract legal professional privilege as established in Pratt Holdings v Commissioner of Taxation. In 2004, in Pratt Holdings v Commissioner of Taxation, the Full Federal Court held that a third party’s communication with a client, even where there is no litigation pending, could potentially be protected by legal professional privilege. Previously, it was thought that the protection would only apply where the third party was not independent, but was acting as the client’s agent in making the communication.