What Is Legal Professional Privilege?

Privilege exists to support the administration of justice. People rarely receive good legal advice unless they tell their lawyer the full story, including parts they would rather keep private. Without a guarantee of confidentiality, many would withhold the very information their lawyer needs to help them. Privilege removes that incentive and allows the legal system to function effectively.

Australian law recognises two main forms of legal professional privilege. Advice privilege protects confidential communications made for the dominant purpose of obtaining or giving legal advice. Litigation privilege protects confidential communications and documents created for the dominant purpose of use in actual or reasonably anticipated litigation, including communications with third parties such as expert witnesses.

Privilege belongs to the client, not the lawyer. This means only the client can waive it. A lawyer cannot disclose privileged information without the client's consent, except in narrowly defined circumstances such as preventing serious harm.

Privilege does not protect every interaction with a lawyer. Communications must be confidential and made for the dominant purpose of legal advice or litigation. Communications for a commercial, accounting or strategic purpose are not privileged, even if a lawyer happens to be involved. Communications made in furtherance of a fraud or other illegal purpose are also not protected.

Privilege can be waived deliberately or, more often, accidentally. Forwarding a privileged email to someone outside the privileged circle, discussing the substance of legal advice in a public meeting, or relying on the advice in court proceedings can all amount to a waiver. Once waived, privilege is generally lost for good.

Mark legal advice clearly, limit circulation to those who genuinely need it, and avoid combining legal advice with commercial commentary in the same document. If in doubt, ask your lawyer before sharing privileged material more widely.