Client legal privilege (CLP), often referred to as "legal professional privilege", is a common law right that exists to protect the administration of justice and the right of individuals and other entities/organisations to obtain confidential advice about their legal circumstances. It protects legal advice given by a lawyer to his or her client (advice privilege) and communications pertaining to actual or contemplated litigation or court proceedings (litigation privilege).
It is called "client legal privilege" because the privilege belongs to the client, not the lawyer. A lawyer may only disclose privileged communications if clearly instructed to do so by their client. However, the chief purpose of CLP is not to confer a right for the benefit of the client, but to facilitate the administration of justice.
The proper administration of justice requires that clients are able to communicate freely and frankly with their lawyer, without fear of disclosing any information relevant to the legal advice they are seeking. It is well understood that, in the absence of the privilege, legal proceedings may be delayed or even miscarried as lawyers may not be able to properly represent their client, or bring relevant matters to the attention of the court. Ensuring candour and honesty in such communications is important, because we live in a complex society and our laws and legal system are at times very complicated. It is in society's interest that people (including corporations) seek legal advice about their affairs and in seeking advice feel free to disclose all relevant facts. The complexity of these laws is coupled with increasing reliance on self regulation by the community, for example the self assessment system of taxation.
Client legal privilege also promotes compliance with the law. Since lawyers owe a paramount duty to the court and the administration of justice, they are required to encourage clients to obey the law. Most people, including corporations, genuinely attempt to fulfil their legal obligations. Lawyers play an important role in enabling them to do this by advising on relevant obligations, and helping to detect and address potential and actual breaches.
Client legal privilege is also regarded as a fundamental individual right, derived from the right to privacy and the right to protection from the State, particularly where regulatory or investigatory powers are used against them. In this regard, Deane J said in Baker v Campbell (1983) 153 CLR 52 at 120:
"That general principle represents some protection of the citizen - particularly the weak, the unintelligent and the ill-informed citizen - against the leviathan of the modern state. Without it, there can be no assurance that those in need of independent legal advice to cope with the demands and intricacies of modern law will be able to obtain it without the risk of prejudice and damage by subsequent compulsory disclosure on the demand of any administrative officer with some general statutory authority to obtain information or seize documents."
Client legal privilege has come under scrutiny in recent years, most significantly following the Royal Commission into the Oil for Food Scandal, involving AWB Ltd and its associated companies. Allegations of inappropriate claims of client legal privilege led to a reference by the former Attorney-General, Phillip Ruddock, to the Australian Law Reform Commission to review the operation of client legal privilege in the context of the investigatory and regulatory powers of Commonwealth agencies.
The Law Council made comprehensive submissions to that inquiry and, subsequently, to the Attorney-General, Robert McClelland, outlining the fundamental importance of client legal privilege to the administration of justice.
The Law Council has stressed the importance of client legal privilege to the Australian legal system and supports its application to all individuals and entities, Royal Commissions and in all other investigatory or regulatory contexts.
The Law Council supports the development of guidelines and ‘best practice' procedures to enable the efficient and effective resolution of client legal privilege claims raised in the context of investigations by Commonwealth agencies.
The recommendations of the ALRC are presently being considered by the Commonwealth Attorney-General and the Law Council looks forward to working with the Australian Government to ensure client legal privilege is upheld and applied uniformly in all jurisdictions.
Law Council Federal Litigation Section: CLPwatch (includes CLP Newsletter, case summaries and updates and links to documents relevant to the ALRC inquiry into CLP)