In Australia, legal professional privilege is a rule of law which prevents communications between legal practitioners and their clients being disclosed to third parties. The rule also generally prevents disclosure of the communications to a court.
The purpose of legal professional privilege is to enable a client to provide completely honest disclosure to their lawyer without fear that this information will be disclosed to anyone. This in turn allows lawyers to provide competent and independent legal advice.
One important feature of the rule is that if a person claims legal professional privilege in court to prevent a communication being disclosed, a court cannot draw an adverse inference against the person, or assume that person “has something to hide.”
Privileged communications may be ones which:
(1) enable a client to receive legal advice or assistance from a lawyer, or;
(2) are with respect to court proceedings that are on foot or were in the contemplation of the client.
Privileged communications between a client and lawyer may not be given in evidence or otherwise disclosed by the client, without the client’s consent.
The law determining when privilege is attached is complicated and at times unclear. Not all communications or documents between lawyer and client will be subject to legal professional privilege. Documents which record matters which do not contain legal advice or accounts may not be protected by privilege. Determining whether privilege exists will usually require legal advice.
Waiver of Privilege
In order for the privilege to be waived the client must have acted in a way which is inconsistent with the maintenance of privilege. This may include third party being present during confidential meetings or privileged documents or advice being disclosed to third parties.
Family law matters can be a very stressful time for those involved, and it is common that client want a third person present during their conferences for emotional support. These can include new partners, parents, family members and friends.
In some circumstances, a third party’s attendance at confidential conferences between the client and their lawyers may result in legal professional privilege being waived.
It represents a particular danger if the support person may also be a witness who may be cross examined about the contents of a privileged communication.
This does not necessarily mean a support person cannot attend the meeting, but may be requested to step outside while advice is being given or confidential information exchanged.
When receiving written advice or communication from their lawyer, clients should be very cautious ensuring that these documents are kept secure and not passed on to any third party without seeking advice. These may include letters email, texts or other communication.
It is important to ensure the email address which electronic communications are received through is a secure one. Paper copies of these communications should also be kept in a safe place where they cannot be accessed by third parties, or children living in the household.
Forwarding on this confidential correspondence over email may also potentially be a waiver of legal professional privilege. This includes ‘copying’ a third party into the communication.
Legal professional privilege may also be waived when a client shows or discusses the communication with a medical practitioner, psychologist or psychiatrist.
It is important to be aware that medical records can be subpoenaed by the other party. If a medical record is subpoenaed and privileged correspondence has been shown or given to the practitioner, privilege may have been waived and entitle the other party to inspect further privileged communications and possibly put them before the Court.
Court documents and Subpoenaed Documents
It is also important to note, under Section 121 of the Family Law Act 1975 (Cth) it is a criminal offence to publish the names of parties, or witnesses, court documents or any account of the proceedings. This includes posting about the proceedings on social media.
The Court also prohibits the disclosure to third parties of any document which is disclosed as part of the Court process, including subpoenaed documents, documents disclosed by the other party or other documents in relation to the case. A breach of this rule can result in serious consequences, including being held in contempt of court.