Trouble In Paradise: No Privilege For Stolen Documents

In Short

The Situation: In an era of sophisticated cyberattacks and data leaks, questions have been raised over whether the doctrine of legal professional privilege ("LPP") should be extended to provide clients with a legal right to seek relief, such as an injunction, to prevent a party from using privileged material obtained in an unauthorized fashion.

The Result: The High Court of Australia has unanimously ruled that LPP can only operate defensively as a right to resist powers for the compulsion of document production or testimony. It does not give rise to an independent right of relief and, accordingly, will not come to the aid of a party affected by a data breach unless some other avenue for relief exists (such as an obligation of confidentiality).

Looking Ahead: The decision makes clear that the doctrine of LPP cannot be relied upon (by itself) to prevent the use of stolen or leaked privileged material. It also leaves questions unanswered in terms of whether other pathways for relief (such as the tort of invasion of privacy) could step in to protect a client's right to privilege. The decision is also a timely reminder on the need to exercise caution before widely circulating privileged documents.

LPP is fundamental to the lawyer-client relationship. The doctrine is deeply rooted as a rule of substantive law in Australia, and other common law countries, which serves to protect the confidential character of communications or documents created when a client seeks legal advice. When and where privilege will apply has been the subject of many judicial decisions in Australia, with the result that the borders of LPP have been fairly well defined for some time.

However, one question that has not been addressed is whether privilege (by itself) provides a client with an avenue to seek a remedy, such as an injunction, preventing the...