Saying hello, waiving goodbye (to privilege)

All information that a lawyer receives from their client is considered to be 'confidential'. Some of that information is also considered 'privileged'. The principle of 'legal professional privilege' (also known as 'client legal privilege') is a fundamental principle of Australia's common law legal system and protects certain communications between a lawyer and their client from compulsory disclosure. To establish that legal professional privilege exists, the information or communication must:

pass between the client and the lawyer; be for the dominant purpose of obtaining legal advice or for use in existing or anticipated litigation; and be confidential. The rationale behind legal professional privilege is that the law should encourage parties to disclose all relevant information to their lawyers. That puts the lawyer in the best possible position to sift through all of the facts and present a relevant, truthful account of the client's case to the court. Although legal professional privilege creates protection for clients, it is a mechanism which is aimed at upholding the administration of justice.

Waiver of privilege

In some circumstances, the legal professional privilege which exists in a document may be 'waived', and the protection which the privilege affords to clients can be lost. For example, where legal advice is deliberately disclosed to another party (thereby eroding confidentiality in the document) any legal professional privilege in that document will automatically be lost. This is known as 'express' waiver. However, sometimes waiver of privilege will occur where the privilege-holder acts in a manner inconsistent with the privilege, thereby 'impliedly' waiving privilege. 1 When asked to determine if privilege has been impliedly waived, courts will consider broader notions of fairness, including whether it is unfair or misleading for a person to rely on legal professional privilege in circumstances where they have acted inconsistently with the privilege.2

What then, amounts to conduct which is 'inconsistent' with the maintenance of legal professional privilege? A simple example is where a party expressly states that they have relied on advice from their lawyers in making a decision or taking a particular action. By expressly referring to the legal advice (or the substance or gist of it) as justification or explanation for their conduct, a court is likely to form the view that it is not permissible for the client to simultaneously withhold the advice from disclosure. For example, privilege was taken to be waived...