Client legal privilege, also called legal professional privilege, and known as attorney client privilege in the USA, protects confidential communications between a lawyer and client. This means that the law and the courts cannot require your communications or documents to be disclosed, and your lawyer is under an obligation to keep that information confidential, like a doctor.
What is it
There are three requirements to client legal privilege
- There is a professional relationship between a lawyer and the client: once you have signed a Cost Agreement or retainer there is a professional relationship.
- There is confidential communications, or documents prepared by the lawyer or client, and even third parties in some instances.
- The communication or document is created for the dominant purpose of legal advice, or with reference to litigation
The privilege belongs to the client, not the lawyer, which is why in NSW it is now called ‘client legal privilege’ instead of legal professional privilege.
How can you lose it?
A client can waive client legal privilege by knowingly and voluntarily disclosing the communication or document. However, there are also instances where you may lose privilege in court proceedings, for example if the communication or document is prepared in furtherance of a fraud.
If the privileged document or communication is accidentally disclosed, it will not be taken to be a 'knowing and voluntary waiver' of privilege. Further, if the mistake is ‘obvious’ and should have been noticed by the party receiving the document or communication, privilege may not be lost.
Why do we have it
Privilege protects a client’s privacy and promotes access to justice. The reason for this privilege is to empower clients to provide full instructions without fear of the information being disclosed. This results in lawyers being able to provide considered and complete legal advice and the most effective representation. There is a public interest against disclosure of information and for privilege, and it ensures proper, accurate conduct of litigation with lawyers and clients who are honest and open with each other.
Client legal privilege may also be considered a human right. In 1983, the High Court said that privilege is an important element in the protection of the privacy and liberty of the individual (Baker v Campbell (1983) 153 CLR 52).
What does it mean for you
With the protection of client legal privilege, it is important to be open with your legal representation. They cannot disclose the information that you provide. Full disclosure from you to your lawyer is important for you to receive the best legal advice and representation.
Should you have any queries in relation to the above article, please do not hesitate to contact Freedman & Gopalan Solicitors by calling us on 02 8999 9837 or by filling out the enquiry form.