Waiver of client legal privilege – what do I need to know?

Client legal privilege (“privilege”), also known as legal professional privilege, is designed to protect the confidentiality of communications between you and your lawyer.  Privilege allows you to resist the disclosure of confidential documentation/communications (even under compulsion of law) which were made for the dominant purpose of:

• providing legal advice; or
• actual or anticipated legal proceedings.

The purpose of privilege is to foster trust between you and your lawyer – to allow you to be frank and honest in your discussions with your lawyer, and in turn, to allow your lawyer to provide accurate and complete advice.  Generally, your lawyer may only disclose privileged documentation/communications if they have been instructed by you to do so. In other words, you decide whether privileged documentation/communications should be disclosed by another person, and no one can force you to disclose this information.

However, please note, there are certain situations in which privilege can be waived or lost over certain communications/documents.

When can privilege be lost or waived?

Legal professional privilege may be lost or waived if you:

• explicitly state that you waive privilege over a certain communication/document; or
• act in a manner that is inconsistent with maintaining the confidentiality of the privileged communication/document, which will include:
  • you knowingly or voluntarily disclosed the substance, gist or conclusion of the privileged communication/document to another person; or
  • the disclosure of the substance, gist or conclusion of the privileged communication/document with your express or implied consent.

By way of example, privilege may be waived if you inform a third party that you obtained legal advice that says you have “strong prospects for success” or have “not breached any laws”. However, merely stating you received legal advice, without disclosing the content of the legal advice, will generally not amount to a waiver of privilege.

The distinctions in this area are fine and to determine whether privilege has been waived will ultimately depend on the specific set of circumstances. Accordingly, if you are unsure whether or not to comment on or share legal advice, you should contact your lawyer.

 What should I do to make sure my advice remains confidential?

As privilege cannot be regained once it is lost, it is best to take a cautious approach when dealing with privileged communications containing legal advice. As stated above, it is prudent that you contact your lawyer if you are unsure on whether to comment on or share legal advice or other confidential information. In addition, you can take the following steps to reduce the risk of you unintentionally waiving privilege:

• do not mention or comment on any legal advice in a public setting;
• do not refer to, or quote from, legal advice in documents that are broadly circulated;
• only share legal advice if it is absolutely necessary, and if it is necessary, make sure that confidentiality is maintained when sharing the legal advice; and
• take immediate steps to remedy any inadvertent disclose of privileged documents/communications.

Require assistance?

If you require advice as to whether to share privileged communications/documents, contact the Litigation and Dispute Resolution team at Coulter Legal today.