The concept of client legal privilege, also known as legal professional privilege, is a principle often not completely understood by a client when they engage a lawyer. Although the extent of its importance is not necessarily considered in most matters due to the nature of the work, its application is widespread. This is because client legal privilege is concerned with maintaining the confidentiality of certain communications between clients, their lawyers and third parties.
When does it apply?
When a client, whether an individual or a corporation, engages a lawyer, the client will be afforded the privilege where those communications (correspondence, conversations, documents, etc.) are made for the dominant purpose of use in litigation (whether actual or contemplated) or for the dominant purpose of giving or obtaining legal advice. It stands to reason then that if a communication between a client and lawyer satisfies the dominant purpose test, those communications are not required to be disclosed by the client or their lawyer in any judicial, investigative or administrative proceeding, unless that privilege has been waived by the client, or overridden by legislation.
Examples of valid claims of client legal privilege include:
• refusing to provide privileged documents to another lawyer during disclosure;
• refusing to disclose privileged communications during an investigation by police or during court proceedings; and
• a lawyer refusing to disclose privileged communications against a client during evidence in court proceedings.
Why does it exist?
The existence of the privilege is important to society. It exists because it encourages individuals and corporations to seek legal advice and make full and frank disclosure of information so that it enables a lawyer to give proper advice. If a client could be compelled to disclose such communications, it would be likely that client would not seek legal advice or provide the lawyer with all necessary information due to the fear of that information being compulsorily disclosed from the lawyer or client. Its rationale is therefore one of public interest that serves the community at large.
When does it not apply?
There are three distinct circumstances in which client legal privilege will not apply, they are identified as follows:
1. the communication does not satisfy the dominant purpose test identified above, that is, the communication was not for the primary reason of use in litigation or obtaining legal advice;
2. the client waives the privilege, expressly or impliedly through their actions; or
3. the legislation expressly overrides the privilege.
Are there any other privileges?
Client legal privilege is not the only privilege that a client may be afforded. In next month’s issue, I will be discussing the privilege against self-incrimination and its availability to the general public. To find out more be sure to stay tuned!