By way of a quick recap, the principle, as stated by the High Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, is as follows:
“Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court”
As such, it protects against the disclosure of confidential communications which were made for the dominant purpose of either:
The client is entitled to refuse to disclose documents containing privileged communications to other parties in litigation or to others, such as regulators who may be conducting investigations (unless the privilege is expressly abrogated by legislation or is lost for some other reason, such as a waiver).
Some key points can be made:
We previously shared some practical tips for maintaining privilege, but they are well worth repeating again:
Taking these steps will assist you, and your colleagues, to ensure that legal professional privilege is properly established, identified and maintained in respect to legal communications.
Author: Toby Boys
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The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.