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.
There are various times when people or companies can be called upon to produce documents. For example:
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.
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).
There are currently two distinct limbs of legal professional privilege:
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.
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.
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).
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:
may not be privileged.
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:
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 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.
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.