This series of articles will examine the general types of privilege that exist. In Part 1, we will look at legal professional privilege (LPP). In Part 2, we will discuss without prejudice privilege (WPP) and self-incrimination privilege (SIP).
Legal Professional Privilege
LPP is an important doctrine enshrined in both the common law and in the Uniform Evidence Acts. It encourages full disclosure by the client to their lawyers, which is in the public interest.
Not all communications and documents shared with a lawyer are subject to legal professional privilege. Documents and emails simply marked “confidential” may not be as private as one would imagine.
There are two main forms of LPP, as stated by Kenny J in Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 (Pratt):
- Legal advice privilege (LAP); and
- Litigation privilege (LP).
LP applies only to communications made in the course of or in reasonable contemplation of litigation, whereas LAP attaches to all advice requested by and given to a client in general.
Legal Advice Privilege
Crucially, LAP does not cover all communications between professional and client. You should be aware of the following limits:
- ‘Legal advice’ only refers to advice given by qualified solicitors and barristers and does not include other legally qualified professionals such as accountants;
- LAP applies to communications between the client and the lawyer only, and not between the client and a third party (as opposed to an agent of the client); and
- Any document sent to the lawyer by the client must have an element of confidentiality and must exist for the benefit of seeking legal advice.
There are several points to note regarding LP:
- Litigation must be on foot or have a real likelihood of proceeding, not merely be a possibility;
- The ‘dominant purpose’ of a communication is to obtain advice about the litigation (it need not be the sole purpose); and
- The burden of proof rests on the party claiming privilege in a proceeding.
Though a distinction between the two types of LPP may be blurry and somewhat artificial, it was nevertheless upheld in Pratt and subsequent cases. LAP protects the relationship between a lawyer and client, while LP upholds the functions of the adversarial court system.
Clients seeking legal advice should be aware of these complexities surrounding privileged communications and be aware that what they say and write may not be as private as originally thought.
This is Part 1 of a two-part series on legal privilege. Part 2 on Without Prejudice Privilege Self-Incrimination Privilege is also available here.