Client Legal Privilege in Litigation, what is it?

What is client legal privilege?

In both legislation and common law in Australia, client legal privilege, also known as legal professional privilege, is recognised as a fundamental legal principle.

So what is it?

This privilege protects the confidentiality of communications (both oral and written) between a client and their legal advisor. It is designed to promote the free flow of information between a client and their lawyer by ensuring that the client can freely disclose all relevant facts without fear of disclosure, and that legal advisors can provide accurate and effective advice without fear of reprisal.

When Does Legal Privilege Apply?

In order for legal privilege to apply, the communication or material must meet certain criteria.

Firstly, the communication or material must have been made in confidence. This means that the communication or material must have been conveyed or talked about with the understanding that what was shared would be confidential and not shared.

Secondly, the communication or material must have been made when seeking legal advice or as part of litigation. “Legal advice privilege” applies to communications and materials, including documents, that are created for the purpose of obtaining or providing legal advice.

Similarly, “litigation privilege” applies to communications and materials that are produced for the dominant purpose of actual or anticipated litigation. This type of privilege is often claimed in relation to materials that are created during the pre-litigation or discovery stages of a legal proceeding.

What Exceptions to Privilege Apply?

In Australia, there are certain statutory exceptions to client legal privilege. These exceptions allow for the disclosure of confidential communications or documents that would otherwise be protected by the privilege.

One such exception is the crime-fraud exception. This exception applies where legal advice is sought or provided to facilitate the commission of a crime or a fraud. In such cases, the privilege does not apply and the communications or documents can be disclosed in legal proceedings.

Another example is the public interest exception. This exception applies where there is a public interest in disclosing the communication or document that outweighs the public interest in maintaining client legal privilege. This exception is often invoked in cases involving matters of public importance, such as corruption or misconduct.

There are also exceptions to client legal privilege in certain legislative schemes. For example, the Corporations Act 2001 (Cth) provides that certain communications between a company and its legal advisers are not protected by client legal privilege if they are made for the dominant purpose of furthering a criminal or fraudulent purpose.

Similarly, the Taxation Administration Act 1953 (Cth) provides that certain communications between a taxpayer and their legal adviser are not protected by client legal privilege if they are made for the dominant purpose of tax evasion.

Can Client Privilege Be Waived?

Client legal privilege can be waived by the client, either expressly or impliedly. The client can waive privilege by disclosing the communication or material to a third party or by failing to take reasonable steps to maintain the confidentiality of the information.

In addition, legal client privilege can be waived by the legal advisor. This occurs when the legal advisor discloses the communication or material without the client’s consent or where the legal advisor owes a duty to disclose the information to the court or other legal authority.

Client Privilege When Issuing Subpoenas

A subpoena is a court order requiring a person to produce documents or give evidence in a legal proceeding. In general, client legal privilege can be claimed in response to a subpoena. However, the privilege can be overridden in certain circumstances, such as those discussed above.

A party who wishes to claim client legal privilege in response to a subpoena must generally provide a privilege log or schedule. This is a document that sets out the documents or materials that are subject to the privilege and provides information about the nature of the privilege claim. The privilege log or schedule must provide sufficient information to enable the party issuing the subpoena to understand the basis of the privilege claim and to assess the validity of the claim. The privilege log or schedule must also be provided in a timely manner, usually within a specified period after the subpoena is issued.

If the party issuing the subpoena disputes the privilege claim, they may apply to the court for an order compelling the production of the documents or materials in question. In such cases, the court will consider the validity of the privilege claim, taking into account factors such as the nature of the communication or material and the circumstances and purpose for which it was created.

The court may also consider the public interest in disclosure, particularly where the information is relevant to a matter of public concern. In such cases, the court may require the documents or materials to be produced, even if they are subject to client legal privilege.

It is important to note that the rules governing client legal privilege and subpoenas may vary depending on the jurisdiction and the nature of the legal proceeding. It is therefore important to seek legal advice if you are served with a subpoena or if you wish to claim client legal privilege in response to a subpoena.

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