Factsheet

Legal professional privilege

By Aaron Alcock / 03 July 2019

What is legal professional privilege?

In broad terms, in Australia, legal professional privilege protects confidential privileged communications from disclosure under compulsion of court or statute.

The privilege attaching to a communication does not belong to the lawyer.  Instead, it belongs to the client. The phrase “legal professional privilege” is sometimes replaced with “client legal privilege” to emphasise the nature of the privilege.

When is legal professional privilege relevant?

There are various times when people or companies can be called upon to produce documents. For example:

  • parties to legal proceedings can be required to disclose documents in the proceedings;
  • subpoenas and non-party disclosure can require the production or disclosure of documents; or
  • ASIC and other governmental bodies have powers to require the production of documents.

Subject to the particular circumstances, documents which are privileged may not need to be produced. This can also depend on the particular legislation involved, as some legislation can require the production of privileged documents.

Basis of privilege

Legal professional privilege is a substantive rule of law and is not revoked by statutory provisions unless there are clear words, or a necessary implication, to that effect. Legal professional privilege has also been recognised in the Evidence Act 1995 (Cth), with a few differences from the common law (which may or may not be important, depending on the particular circumstances).

When does legal professional privilege arise?

There are currently two distinct limbs of legal professional privilege:

  • advice privilege which, in broad terms, applies to any communications between a lawyer and a client which were made for the dominant purpose of the lawyer providing (and the client receiving) legal advice. Legal advice is not limited to telling the client the law. It extends to advice regarding what action should be taken in that legal context; and
  • litigation privilege which, in broad terms, applies to any communications between a lawyer and a client or third party which were made for the dominant purpose of use in existing or anticipated legal proceedings.

Communications

The communication can be in writing or verbal. In order to be privileged, the communication must be confidential (e.g. communications between a lawyer and a client are presumed to be confidential).

In Australia, privilege can also extend to documents even though they are not communications.

Existing or anticipated legal proceedings

Legal proceedings will include proceedings in the State or Federal Courts and are also likely to include arbitration. However, the position in respect of proceedings in Australian tribunals and commissions is less clear.  

The Evidence Act 1995 (Cth) includes a definition of an “Australian court” which includes a person authorised by an Australian law or by consent of the parties to hear, receive and examine evidence and a person exercising a function under an Australian law who is required to apply the laws of evidence.

At common law, the focus is on the adversarial nature of Australia’s justice system, the need to secure a fair trial within that system and the power of the decision maker to affect the rights of the parties. For example, it has been held that legal proceedings at common law do not extend to a commission of inquiry or an expert determination.

Dominant purpose

The purpose for which a document is brought into existence is a question of fact, which will require a consideration of who made the document and why.

In many cases, the purpose of the maker of the document will be determinative (e.g. a lawyer who creates a letter for the purposes of providing advice). However, in some cases, the purpose of the person commissioning the document may be relevant (e.g. a lawyer who engages an expert to prepare a report).

Specific examples

Professional communications between a lawyer and a client are usually privileged, unless there is something else to take it out of the privilege. However, the mere fact that a lawyer is involved in the communication is not sufficient. The communication must otherwise meet the test for advice privilege or litigation privilege. For example, communications which involve:

  • no more than the passing on of information;
  • a purely commercial transaction (e.g. the negotiation of the commercial terms of a transaction, as opposed to the giving of legal advice on those terms); or
  • third parties (although this depends on the context and the purpose of those communications);

may not be privileged. 

Expert reports

Expert reports are often prepared for the dominant purpose of use in actual or anticipated legal proceedings.

There are a number of steps involved in the preparation of such expert reports and the privilege attaching to each step can vary:

  • instructions and other communications with the expert are usually privileged;
  • some cases have held that an expert’s working notes are not privileged, but draft reports may, in some circumstances, be privileged; and
  • it has also been held that a final report of an expert is not privileged, where it is prepared for the dominant purpose of being put before the Court as evidence.

However, when an expert report is filed and served, there is ordinarily an implied waiver of privilege in respect of any documents relied upon by the expert which are required to completely or thoroughly understand the report. As such, privilege in instructions and documents provided to the expert will often be waived once the expert report is filed and served.

Further, in legal proceedings governed by the Uniform Civil Procedure Rules 1999 (Qld), statements or reports of an expert are not privileged from disclosure. This can include draft reports, correspondence from the expert and notes of discussions with the expert.

In-house lawyers

In order to attract privilege, generally speaking the lawyer must be admitted to practice (whether in Australia or overseas).

Advice provided by in-house lawyers can attract privilege, provided the lawyer is consulted in their professional capacity, the communications are confidential and the in-house lawyer is sufficiently independent.

Waiver of privilege

Privilege can be waived, either expressly or impliedly.

For an implied waiver, the main question is whether the client has acted inconsistently with the maintenance of that privilege. For example, disclosing the “gist” or substance of legal advice can, in some circumstances, amount to an implied waiver.

Tips

  • Consider the dominant purpose for which the document is being prepared. If the dominant purpose is not the giving or receiving of legal advice, or for use in actual or anticipated legal proceedings, the document will not be privileged.
  • If the document is being prepared for anticipated legal proceedings, the basis for believing legal proceedings may be commenced may need to be documented (e.g. providing instructions to lawyers, recording the basis on which proceedings are anticipated, recording that the purpose of the document is for the anticipated proceedings, etc). This may be difficult early in investigations and particular care should be taken in those circumstances.
  • If the document is privileged:
    • mark it “Confidential and Privileged” to identify it as privileged;
    • ensure the document is kept separate from non-privileged information. If the document is communicated, preferably it should be communicated separately to non-privileged information; and
    • limit the dissemination of the document to people who need-to-know.
  • Remember that where privileged documents are discussed, comments on the documents may not be privileged.
  • Be careful recording privileged information in other documents (for example, in Board minutes). If privileged material is recorded, any comments or discussion which goes beyond repeating the privileged material, may not be privileged. Care should also be taken in respect of the circulation of any documents which contain privileged material.
  • Before privileged material is provided to third parties (including companies within the same group), give consideration to the basis on which the material is disclosed and whether privilege will be maintained. For example, is there a common interest? Is the privileged material provided on the basis of limited disclosure? The basis on which the material is provided should, if possible, be documented before the material is provided (making clear that privilege is not waived).
Authors
Aaron Alcock
Special Counsel
Aaron is a Special Counsel in our Dispute Resolution practice with a particular focus on resolving disputes involving resources and energy projects, property, technology and intellectual property.
Subscribe
Receive email updates of our new publications.