Legal professional privilege

Legal professional 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. 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 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, unless the privilege has been expressly or impliedly waived.

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.

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