This means that any oral or written communication between a client and his or her solicitor cannot be disclosed. This has the effect of allowing the client to be open and frank with his or her solicitor without fear of incriminating themselves.
This right of a client is protected by both legislation and the common law. The Evidence Act 1995 provides that a confidential communication between a client, lawyer and/or third party is privileged, if the communication was bought into existence for the dominant purpose of providing legal advice and/or litigation.
This may sound like a fairly simple test, however you can be rest assured that lawyers will complicate it.
There have been a number of high profile matters where legal professional privilege has been raised. Most recently Michael Williamson, the head of the Health Services Union was caught with a suitcase full of documents in a carpark following a raid on his office. At this stage the Police have been unable to look at the documents as he has asserted that the documents were subject to a legal professional privilege claim. This claim is yet to be tested by the courts however the documents cannot be inspected by the Police until this claim for privilege is determined.
Another high profile case is that of Rupert Murdoch in the UK. Mr Murdoch said that his solicitors had done an investigation in which they found there was no evidence of any illegal activity. The law firm was unable to protect itself because the advice it had given was privileged and the privilege is that of the client’s. It could however be said that Mr Murdoch may have waived the privilege by saying what the advice was.
Advice must be legal advice and does not extend to advice given by accountants. Having said that if the advice is to a solicitor (about a mutual client), then it would be covered by legal professional privilege.
The privilege belongs to the client and can only be waived by the client or an order from the court. If you have any questions about capturing or maintaining privilege, please call us at Everingham Solomons because Helping You is Our Business.
Click here for more information on Mark Grady.