Existing for over 400 years, legal professional privilege (LPP) is treated under Australian law as a fundamental common law and as a human right. Necessary to the right of every person to seek legal advice, it also plays a crucial role in ensuring the proper administration of our justice system. But what exactly is LPP? At Robert Wood and Associates, we are leading business lawyers located in Boronia, Melbourne, here’s our guide to LPP and why it is important.
What is LPP?
LPP protects the confidentiality of communications between a lawyer and their client. It entitles a party to withhold documents and/or deny access to them on the basis that the documents contain confidential legal communications between a lawyer and client. This ensures people can get legal advice, or assistance in legal proceedings, knowing that information they share in confidence with their lawyer will not be disclosed.
The Key Elements for LPP
In Australia, for any information or communications to be subject to LPP, it must meet the following tests:
- The communication must be made in the course of a lawyer/client relationship
- The communication must be confidential and remain confidential
- The communication must have been created for the dominant purpose of legal advice or providing legal services in respect of anticipated or existing litigation
If these stipulations are all met, the information will be protected by LPP and exempt from release.
What Type of Communications Can Be Protected?
LPP can extend to all types of communications, including records of oral communications and hard copy or electronic communications. LPP extends to cover both the content and records of face-to-face discussions, letters, emails, faxes, photographs, taped telephone calls, electronic diary entries and voicemails.
Why Do We Need It?
The purpose of legal professional privilege is to enable a client to provide full disclosure to his/her lawyer without fear that this information will be used against them. This enables lawyers to provide competent and independent legal advice. It is also an important check in the balance of power between the individual and the state.
Exceptions to LPP
Even when the dominant purpose test is satisfied, exceptions will apply in circumstances where:
- The privilege has been waived
- It is in the public interest
- A statute modifies or removes the privilege where the legislature affords a competing public interest a higher priority
- The communication is for the purpose of facilitating a fraud or crime
LPP may only be waived by the client, although it is unfortunately not uncommon for lawyers to waive their client’s privilege in error.
Ways to Maintain Privilege
There are a few things you can do to ensure maintain LPP and avoid the inadvertent waiver. Such things include:
- Keep the communications strictly confidential. Avoid any distribution of legal advice or summaries of legal advice.
- Do not disclose the substance, gist or conclusion of legal advice.
- If the information is legal advice or a communication to be sent to your lawyer mark the communication as “Privileged and confidential for the purpose of legal advice”.
- If the communication is to contain both legal advice and non-legal advice, separate the document so the legal advice stands as an independent document from the non-legal advice.
- Have a clear and well-communicated document management policy that addresses the creation and circulation of documents and gives clear guidance on the importance of, and ways to protect, LPP.
If you are in need of legal advice contact the experienced and professional team at Robert Wood and Associates. Conveniently located in Boronia and with specialist business lawyers, family lawyers, criminal lawyers and more, we can help you with a diverse range of legal solutions. Contact us today to find out more.
