Client Legal Privilege PDF

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Evidence Law lecture 8 - Topic Twelve ...

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Client Legal Privilege & Other Privileges: Client Legal Privilege Overview Loss of Client Legal Privilege Section 121: Loss of Client Legal Privilege Generally The Inconsistency Test: Section 122(2) “The Substance of The Evidence”: Section 122(3) “In the Course of Making a Confidential Communication or Preparing a Confidential Document”: Section 122(5)(a)(i) Joint Clients & “Common Interest”: Section 122(5)(b), (c) Discovery: Documents Mistakenly Produced Without a Claim for Privilege Loss of Privilege A Document Used to Try to Revive a Witness’s Memory (or By a Police Officer Under s 33): Section 122(6) Defendants in a Criminal Trial: Section 123 Joint Clients: Section 124 Misconduct: Section 125 Related Communications & Documents: Section 126

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Client Legal Privilege: Overview: 

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Confidential communications passing between a client and a legal adviser need not be given in evidence at trial (Part 3.10, Division 1 – Client legal privilege) or in pre-trial processes (s 131A) or otherwise disclosed by the client and, without the client’s consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either: (1) To enable the client to obtain, or the advisor to give legal advice, or assistance, or (2) With reference to litigation that is actually taking place or was in the contemplation or anticipation of the client. Similarly, documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they were generated with reference to litigation that is actually taking place or was in the contemplation or anticipation of the client. The first aspect of client legal privilege is often called “advice privilege” – s 118 of the Evidence Act The second aspect is referred to as “litigation privilege” – s 119.  In general terms, both sections create a privilege for confidential communications made, and confidential documents prepared, for the dominant purpose of giving/receiving legal advice or litigation. Where the confidential communication or document was generated for multiple purposes, privilege will only attach if it is shown that the dominant purpose was the legal advice or litigation purpose. One way to determine this is to ask: Would the communication have been made or the document prepared even if the suggested dominant legal advice/litigation purpose had not existed?  If the answer is ‘yes’, the test is not satisfied.  If the answer is ‘no’, the test will be satisfied, notwithstanding that some ancillary use or purpose was contemplated at the time. Dominant purpose means “ … ruling, prevailing or most influential purpose”. s 118(a) and (b) protects from disclosure confidential communications between lawyers and their clients as well between the lawyers while s 118(c) protects from disclosure the contents of confidential documents prepared by lawyers, clients and other persons provided the dominant legal advice purpose exists. On the other hand, the reference to “another person” in s 119(a) indicates that communications as well as the contents of confidential documents between third parties and the lawyer or the client are protected where the dominant purpose is the provision of professional legal services in litigation. This can be significant as the implication is that s 118 does not protect confidential oral communications between a client and a third party where the confidential communication is for the dominant purpose of the client’s lawyer providing legal advice to the client only. Confidential oral communications between a client and a third party are only protected where the communications were for the dominant purpose of litigation.

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s 120 protects confidential communications and the contents of confidential documents between an unrepresented party and another person if made for the dominant purpose of preparing for or conducting the proceedings.

Loss of Client Legal Privilege: Section 121: Loss of Client Legal Privilege Generally: 

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Division 1 of the Evidence Act on client legal privilege does not prevent the adducing of evidence: (1) That is relevant to a question concerning the intentions, or competence in law, of a client or party who has died;  e.g. with respect to a will or trust instrument (2) That, if not adduced, would prevent the court from enforcing an order of an Australian court; (3) Of a communication or document that affects a right of a person, e.g. defamatory statements or statements that evidence offer or acceptance. Section 122(1): Evidence of communications or documents otherwise privileged may be adduced with the consent of the client or party concerned Section 122(2): Subject to subsection (5), evidence of communications or documents otherwise privileged may be adduced where the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of that evidence. Section 122(3): Without limiting subs (2), a client or party is taken to have inconsistently if: (a) The client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) The substance of the evidence has been disclosed with the express or implied consistent of the client or party. Section 122(5): Outlines circumstances in which a client or party will not be taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence. They include where the substance of the evidence has been disclosed: (i) In the course or making a confidential communication or preparing a confidential document; or (ii) As a result of duress or deception; or (iii) Under compulsion of law; or (iv) By a client to a person for whom a lawyer is providing professional legal services to both regarding the same matter; or (v) To a person with whom the client or party had, at the time of the disclosure, a common interest in an existing, anticipated or pending proceeding. Section 122(6): Notwithstanding a claim for privilege, a document that has been used to try to revive a witness’s memory about a fact or opinion (or by a police officer) may be adduced in evidence.

The Inconsistency Test: Section 122(2): 

The case of Osland v Secretary to the Department of Justice (2008) 234 CLR 275, a common law legal professional privilege case, provides guidance on the approach.  The Victorian Government had obtained confidential legal advice concerning a petition for mercy. 129 | P a g e

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The Attorney-General issued a press release which said that the advice had recommended that the petition be refused. The High Court unanimously held that there was no inconsistency between disclosing the conclusions of the advice for the purpose of informing the public that the Government’s decision was based on independent legal advice, and its desire to maintain the confidentiality of the advice itself.

“The Substance of The Evidence”: Section 122(3): 

Whether disclosure amounts to disclosure of the substance of a privileged communication is a question of degree.

“In the Course of Making a Confidential Communication or Preparing a Confidential Document”: Section 122(5)(a)(i): 

Section 117 defines “confidential communication” and “confidential document” as made in circumstances where there is an express or implied obligation not to disclose the contents of the communication or document, whether or not the obligation arises under law.

Joint Clients & “Common Interest”: Section 122(5)(b), (c): 

The concept of common interest for the purposes of s 122(5(c) is not rigidly defined. Examples of situations where the provision may apply include disclosure by insured to insurer, partner to partner, and co-tenant to co-tenant. Each case must be considered on its own facts.

Discovery: Documents Mistakenly Produced Without a Claim for Privilege: 

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303  During discovery, a number of privileged documents were mistakenly listed as nonprivileged and produced on compact disc for inspection by the other side. Later, a demand was made that the documents be returned and that an undertaking be given that they not be used. Both requests were refused.  The High Court held:  This was simply a case in which an inadvertent and unintentional mistake had been made and should have been promptly corrected either by the parties themselves or by a simple court order amending the discovery lists and directing the return of the documents listed by mistake as nonprivileged material.  Where disclosure has been inadvertent, then, absent a compelling reason, a court will ordinarily correct the mistake and make orders for the return of the documents.  The ordinary case is one in which the party claiming privilege has acted promptly and the other party has not been placed, as a result of the disclosure, in a position which would make an order to return the documents unfair. In such a case, no issue of waiver arises. 130 | P a g e

Loss of Privilege: A Document Used to Try to Revive a Witness’s Memory (or By a Police Officer Under s 33): Section 122(6): 

Privilege does not apply to a document that:  A witness has used to try to revive his or her memory about a fact or opinion under s 32 of the Act; or  A police officer has read or been led through under s 33 of the Act.

Defendants in A Criminal Trial: Section 123:  

Generally, privilege is lost if evidence is adduced by a defendant in criminal proceedings, unless the evidence derives from an associated defendant. Dictionary: “associated defendant”, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for: (a) An offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or (b) An offence that relates to or is connected with the offence for which the defendant is being prosecuted.

Joint Clients: Section 124: 

Privilege under ss 118 or 119 is lost if in civil proceedings:  Before the commencement of the proceeding, 2 or more parties have jointly retained a lawyer in relation to the same matter; and  Evidence of a communication made by any of the parties to the lawyer, or a confidential document prepared by or for any of the parties, in relation to the same matter, is adduced by one of the parties.

Misconduct: Section: 125 

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Generally, privilege lost if a communication or document was made or prepared by a client, lawyer or party in furtherance of a fraud, an offence or an act that renders a person liable to a civil penalty. Further, the privilege will be lost if the communication or document was known, or should reasonably have been known, by the client, lawyer or party, to have been made or prepared in furtherance of a deliberate abuse of statutory power. Kang v Kwan [2001] NSWSC 697  The plaintiff had carried out work on certain property owned by the second and third defendants.  Evidence showed that the first defendant colluded with the others to create a false mortgage, participated in a sale of the property to a third party, received “payment” of the mortgage monies and dissipated the funds overseas.  The privilege argument centred on legal advice and other confidential communications passing between various lawyers and the defendants.  Held: Both limbs of s 125 were established and that privilege had been lost. 131 | P a g e

Related Communications & Documents: Section 126: 

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This effect of this provision is to permit the adducing of “evidence of another communication or document” if it is reasonably necessary to do so to enable a prior understanding of a communication or document before the court. Towney v Minister for Land & Water Conservation (NSW) (1997) 147 ALR 402:  If a privileged document is voluntarily disclosed for forensic purposes, and a thorough apprehension or appreciation of the character, significance or implications of that document requires disclosure of source documents, otherwise protected by client legal privileged, ordinarily the test laid down by s 126 of the Act will be satisfied.  Mere reference to a privileged source document, of itself, does not necessarily result in loss of the privilege attaching to the whole or even part of that document.  A source document may be divided clearly into discrete parts, with only one part relevant to gaining a proper understanding of a document.

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