What is legal professional privilege?

We’ve all seen it in a movie or TV show before – the lawyer can’t do their job properly without the client disclosing all important facts, even if they’re detrimental or incriminate the client.

The client shows a few signs of nervousness to which the lawyer quickly calms through the single line –

Don’t worry – I can’t tell a single soul unless you authorise me to. You’re protected by lawyer-client privilege.

Or attorney-client privilege as our American friends might commonly refer to it as.

What is it?

Officially known as legal professional privilege in Australia, it is a piece of legislation put in place to protect the communications between you and your lawyer.

Initially, the privilege was held by the lawyer rather than the client, back when the concept first emerged in the 16th century. Thankfully, we came to our senses and switched it the other way around.

Michael Kirby, the Justice of the High Court of Australia from 1996-2009 stated legal professional privilege is an:

Important human right deserving of special protection for that reason.

Why do we need it?

The Australian Law Reform Commission has published an extensive document detailing many different facets of the concept. You can find the full article here.

To bring a long story short, there are five main reasons for it being in place:

  1. In order to encourage full disclosure of all important facts from the client to the lawyer
  2. Enable the lawyer to promote compliance with the law whilst allowing them to give full and beneficial advice to the client
  3. Encourage alternative dispute resolution in place of lengthy, costly litigation
  4. Protect the client’s privacy, and
  5. Protecting access to justice

When does it apply?

In order for the legal professional privilege to be in place, there are three conditions the communication must meet.

  1. It must be confidential – meaning you don’t post your confession on their public Facebook page
  2. You must already be in a lawyer-client relationship – that is you must already be using their services, and
  3. The communication’s dominant purpose must be one of the following two:
    • To seek or provide legal advice
    • To be used in existing or anticipated legal proceedings

Follow those three conditions, and whatever you tell your lawyer should be received in privilege.

Of course, there are certain situations in which the legal professional privilege becomes void.

When does it not apply?

This is referred to as the client waiving their right to the communication being kept confidential. This can occur directly (you tell them it’s ok to tell someone else) or indirectly (your actions tell them you are ok with waiving the privilege).

Most commonly, legal professional privilege is waived indirectly when the client acts inconsistently with the confidentiality the privilege is supposed to protect.

There are many circumstances in which the privilege can be waived, unfortunately, far too many to discuss here.

Extra Reading

If you’re interested in furthering your understanding of legal professional privilege, please feel free to continue reading via the following resources:

  • Frequently asked question on legal professional privilege – Link – Western Australia Department of Mines
  • Legal Professional Privilege – Link – Freedom of Information for Western Australia
  • Legal Professional Conduct Rules 2010 Link – The Law Society of Western Australia