Legal professional privilege

If a communication is subject to legal professional privilege, we will not seek access to it. In some circumstances, you may decide to provide the document to us – for example, you may want to demonstrate the legal basis of your claim for a deduction and waive privilege. In that case, you will forgo your right to keep the communication from us. This may also have implications for maintaining privilege over the communication more broadly (for further explanation, see Waiver).

Privilege protects confidential communications between you and your lawyer that are made for the dominant purpose of:

  • legal advice – enabling you to obtain, or your lawyer to give, legal advice
  • litigation – where litigation is taking place or is reasonably anticipated at the time the communication was made.

Privilege belongs to a client and not the lawyer. Only the client (or their lawyer under a retainer) has the power to decide whether or not privilege should be claimed, and may choose to waive it.

Communications made with the intention to obtain or give legal advice or for the conduct of actual or contemplated litigation, even though they are not in fact used in the litigation, may be privileged. In some circumstances, communications made between either you or your legal adviser and a third party may also be privileged.

Privilege may cover but is not limited to:

  • notes, memoranda, minutes or other documents made by you, your staff or your lawyer about communications that      
    • are privileged
    • contain a record of privileged communications
    • are to be used by your lawyer to advise you or conduct litigation on your behalf
  • your knowledge, information or belief derived from privileged communications with your lawyer or your lawyer’s agent.

Privilege does not extend to:

  • documents lodged with your lawyer merely for the purpose of claiming privilege
  • communications which are not confidential.

Privilege can be claimed in other circumstances, including when:

  • the client is an entity rather than a natural person
  • there has been a disclosure of privileged communications to a third party who has an interest sufficient for 'common interest privilege' to apply
  • there is more than one client who has retained the lawyer in the matter in question, in which case 'joint privilege' may apply.

A copy made of a document that is subject to legal professional privilege is normally also privileged in the hands of the lawyer or the client, particularly if the copy is made for record-keeping purposes.

Dominant purpose test

The purpose for which the communications or documents were made is central to legal professional privilege. They must be made or brought into existence for one of the following:

  • the dominant purpose of obtaining or giving legal advice
  • the dominant purpose of conducting actual or contemplated litigation
  • more than one purpose, where the dominant purpose is one of giving legal advice or conducting litigation.

If you claim that a communication was created for more than one purpose, you are required to state:

  • all the purposes of the communication
  • the dominant purpose, and how and by whom the dominant purpose was determined.

The dominant purpose test is an objective test – the onus is on you as the claimant to establish your privilege claim.

    Last modified: 26 Jul 2016QC 37592