1 April 2016
A lot of lawyers talk about “legal professional privilege” or “client legal privilege” and while this may sound like legal jargon that Harvey from Suits would use to impress a judge, privilege is a fundamental legal concept in Australia. This blog will briefly explain what legal professional privilege is and why it can be important for an organisation.
What is it and why does it exist?
Legal professional privilege is designed to preserve from disclosure confidential legal communications, and confidential documents, prepared for the dominant purpose of legal advice or litigation (actual or contemplated). In some circumstances, confidential third party communications can also be protected. This facilitates a free exchange of information between legal practitioner and the client, so that the client can be properly advised, without fear of potentially prejudicial information being disclosed at a later date. This in turn assists the efficient administration of justice and public interest overall.
What you need to know
For legal professional privilege to be established there must be a lawyer and a client, confidential communications or documents, which are created for the dominant purpose of legal advice or actual or anticipated litigation.
1. Who are the lawyer and the client?
There must be a professional relationship between lawyer and a client. Lawyers include all solicitors, barristers and in-house lawyers, provided they are acting independently and in a legal capacity. The client includes the person or body who engages the lawyer, as well as a corporate client’s employees or agents who are responsible for obtaining the relevant legal assistance.
2. What are confidential communications or documents?
For privilege to apply, the relevant communications or documents must be confidential. This means there must be an express or implied obligation not to disclose the contents of the document or communication. Widely circulating legal advice throughout an organisation rather than containing it to those who “need to know”, for example, may indicate that a document is not confidential.
3. What is the dominant purpose test?
Confidential communications and documents are privileged if they are created for the dominant purpose of the provision of legal advice or legal services relating to litigation. In everyday terms, the dominant purpose is the most influential reason for the creation of the document or communication. Simply labelling a document “privileged” or engaging a lawyer will not, without further consideration, be enough to attract privilege.
Why is it important for your organisation?
There are many situations that may arise in an organisation where it is desirable to obtain legal assistance and the benefits of legal professional privilege, for example, where a complaint is made by an employee or a health and safety incident has occurred.
The obvious benefit is that communications and documents attracting privilege retain their confidentiality and need not be disclosed, unless privilege is waived. This is particularly important in circumstances where the information is about matters that could bring the organisation into disrepute or is of a highly sensitive nature for example, sexual harassment investigations, executive terminations or confidential restructures.
In doing so, the organisation is able to protect itself against the possibility of this information being exposed to a third party and any repercussions this may have for the organisation, including damaging the corporate reputation or exposure in the media.