What is Legal Privilege?

◷ 2 minute read

Legal privilege in Australia refers to the legal right that protects certain types of communications between lawyers and their clients from being disclosed or used as evidence in court proceedings or other legal contexts. Legal privilege is an absolute right that belongs to the client, rather than the lawyer.

Legal privilege can apply to two common types of communications:

Legal advice privilege: This type of privilege protects confidential communications between a lawyer and their client that are made for the purpose of obtaining legal advice. This means that clients can share sensitive information with their lawyers, and lawyers can provide legal advice without fear that this information will be used against the client in court.

Litigation privilege: This type of privilege protects confidential communications between a lawyer and their client, or between a lawyer and a third party, that are made for the dominant purpose of preparing for or conducting litigation. This means that lawyers can gather information and communicate with witnesses or experts without fear that these communications will be used against their client in court.

It is important to note that legal privilege can be waived in certain circumstances. For example, if a client voluntarily discloses privileged information to a third party, this may waive the privilege. Additionally, legal privilege may not apply in certain criminal investigations or if the client seeks legal advice to further a criminal act.

In contrast, though a similar approach is applied in the United States, the United States have a legal doctrine known as “the sword and shield principle”. This principle allows a party to use privileged information as evidence in court if the opposing party has previously used privileged information to support its case. The principle is based on the idea that attorney-client privilege (as it is known in the United States) should not be used as a weapon or a shield in litigation. If one party is allowed to use information to support its case, the other party may be unfairly disadvantaged if it is unable to respond with its own privileged information. This, however, is not a concept available in Australia.

It is important to protect and treat your legal privilege with the care and importance it requires. Once legal privilege has been waived, it cannot be restored. You should not disclose your communications with your lawyer to another party and it is always important to keep this in mind when forwarding or replying all to emails as you may unintentionally waive your legal privilege and, in doing so, it may be used against you in court proceedings.