PUBLICATIONS circle 24 Jan 2025

Legal Professional Privilege in Institutional Abuse Claims: What is it and how is it maintained?

By Mathisha Panagoda and Lauren Flint

It is important for institutions when handling abuse claims to understand what is and is not covered by legal professional privilege. Properly maintaining this privilege is essential to avoid certain communications and documents from being inadvertently adduced as evidence in court.


What is legal professional privilege? 

Legal professional privilege is a legal principle that protects confidential communications, both written and verbal, exchanged for the dominant purpose of the provision of legal advice, or made in anticipation of, or during, legal proceedings. 

Both the common law and statute recognises legal advice privilege and litigation privilege with all jurisdictions in Australia having enacted relevant legislation that reflects common law protections.

The essential elements of legal professional privilege in New South Wales are derived from sections 118 (legal advice privilege) and 119 (litigation privilege) of the Evidence Act 1995 (NSW) (Evidence Act). These provisions protect against the disclosure of:

  1.  A confidential communication between a client and their lawyer(s); 

  2.  A confidential communication made between two or more lawyers acting for the client; and 

  3.  The contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person.

Where such communication and/or document came into existing for the dominant purpose of the lawyer(s) providing legal advice to the client or professional legal services relating to an existing or anticipated legal proceeding to which the client is, was, or may be, a party to. 

An example of litigation privilege in the context of the provision of professional legal services would be any communications between a lawyer and an expert whose opinion may or may not be used as evidence in a legal proceeding, including any report that expert prepares. These would be privileged but only until that expert's opinion is served on another party. At that point, the privilege is waived. 

Section 120 of the Evidence Act provides certain privilege type protections for unrepresented litigants where confidential communications or documents are for the dominant purpose of preparing for or conducting a legal proceeding. 

When does legal professional privilege not apply?

Unless the above mentioned criterion are met, legal professional privilege will not apply. Further, any ineligible communication or document may be adduced as evidence in court, including pursuant to discovery or by Subpoena to Produce, issued on the institution by the opposing party. 

Certain communications and documents are inherently not covered by legal professional privilege. For example, if a client conducts a reportable conduct investigation and makes written notes or communicates internally about evidence provided by an alleged offender, these notes and correspondence are not privileged and may be captured by a Subpoena to Produce issued in the course of a subsequent civil claim.  

Legal professional privilege can also be waived. This can be intentional and by consent, for example, as part of a defence strategy in the course of an application to set aside a prior settlement agreement pursuant to Part 1C of the Civil Liability Act 2002 (NSW). In JM v Trustees of the Marist Brothers [2024] NSWSC 1446, in the context of an application to set aside a prior settlement agreement, the Supreme Court of NSW found that the plaintiff had waived legal professional privilege over certain documents from his prior claim. This was because he had cited and relied upon the information contained within the documents in support of his current application. Waiver may also occur by accident. For example, if a client voluntarily discloses privileged communications or documents to a third party. 

Lastly, legal professional privilege does not protect communications or documents made for the furtherance of illegal conduct. 

Tips for maintaining legal professional privilege 

  1.  When in doubt contact your lawyer before the communication or documentation is made to seek advice on the possibility of maintaining legal professional privilege;

  2.  Label documents and correspondence "Strictly Privileged and Confidential" to make clear their protected status and avoid inadvertent disclosures (though labelling material in and of itself does not make it privileged);

  3.  Consider briefing a lawyer from an early stage to advise in respect of a reportable conduct investigation in order to attract privilege where appropriate; and

  4.  Do not discuss privileged content, especially legal advice, with third parties, family, friends, or distribute it internally any wider than absolutely necessary. 

Conclusion 

Legal professional privilege is an important right that allows lawyers and their clients to confidentially obtain legal advice and prepare for litigation.

Maintaining this privilege is a completely different issue and it is important that institutions understand what is and is not privileged, but also, how to maintain the integrity of privilege once obtained. To ensure you are fully informed of any potential risks related to legal professional privilege and the best strategies to mitigate them reach out to our Institutional Risk and Liability team

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. Colin Biggers & Paisley, Australia 2025

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