Legal professional privilege does not always protect communications, including if:
- privilege is waived, either expressly or impliedly
- there is evidence of fraud, crime or improper purpose and the communication was made to further that purpose
- the communication consists of observed facts.
Legal professional privilege can be waived by you, a lawyer acting on your behalf or through the conduct of a third party. Waiver of privilege can be express or implied.
- 'Express waiver' (or intentional waiver) usually occurs where you consent to the release of certain privileged communications or documents.
- 'Implied waiver' (or unintentional waiver) may occur in the circumstances where your conduct is inconsistent with maintaining the privilege.
Privilege may be waived if a third party other than your lawyer (for example, a bank) has custody of your documents that are subject to a privilege claim.
Example – Not waiving privilege
A major public company (Company A) gave communications, including privileged communications, to an accounting firm to carry out an audit for the purposes of the Corporations Act 2001.
The accounting firm has not signed any express confidentiality agreement in relation to its privileged communications.
Company A claims that privilege has not been waived. The documents were only given to the accounting firm to complete an audit as required by the Corporations Act 2001.
Company A's privilege has not been waived in these circumstances. The company has disclosed its privileged communications for the limited and specific purpose of conducting the audit, and an undertaking to maintain privilege would be implied in these circumstances.
End of example
Fraud, crime or improper purpose
Legal professional privilege will be lost if a communication is made to facilitate the commission of a crime or fraud, or for other improper purposes. This applies whether or not the lawyer dealing with the matter is ignorant of the criminal or fraudulent purpose.
The crime-fraud exception requires there to be more than a mere allegation of a crime or fraud. It also applies where the illegal or improper purpose was that of a third party, even if neither you nor your lawyer had an improper purpose.
Example – Improper purpose
Our officer, Tom, was conducting an audit of the income tax affairs of a promoter of a mass marketed scheme.
Communications were made by the lawyer for the dominant purpose of hindering us, by detailing how the records could be shielded from us by creating a double set of books.
The communications were determined to be for an improper purpose. On that basis, privilege did not apply to the documents of interest.
End of example
Legal professional privilege will not protect documents which evidence transactions which do not by themselves amount to the giving or receiving of advice or for litigation – for example, contracts, conveyances, declarations of trust and receipts.
We can request information from an adviser about clients who have purchased, implemented or entered into certain arrangements. The provision of names and addresses in these circumstances does not require the disclosure of privileged communications to us.
Communications generally not covered
The types of communication generally not covered by legal professional privilege include:
- communications that constitute/evidence transactions, including
- receipts and offers
- partnership agreements
- declarations of trusts
- accounting, financial and banking records, such as
- cheque butts
- bank statements.
- communications made for, or involving, fraud or illegal purpose, such as
- abuse of statutory power
- offences against tax laws or the Crimes Act 1914.
- other communications, including
- communications made before the client contemplated obtaining legal advice on the matter
- communications made to and from the lawyer when not acting in that capacity – for example, executive or policy decisions
- lawyers' trust account records and client lists
- internal reports and memoranda, such as board minutes.