Legal Professional Privilege
The 1999 decision of the High Court of Australia has widened the scope and application of the doctrine of legal professional privilege, a development which should provide greater protection to communications between clients and their legal advisors.
Until the decision in Esso Australia Resources Ltd –v- The Commissioner of Taxation (1999), a communication between a client and his/her legal advisor would be categorised as being privileged only if that communication was made for the sole purpose of obtaining legal advice or assistance.
However, the High Court has now held in Esso that a communication between a client and his/her legal advisor will be privileged even if it was made for more than one purpose, provided that the dominant purpose for which it was made was in order to enable the client to receive legal advice, or in connection with current or anticipated litigation.
The practical result of this decision will be that more aspects of communications between lawyer and client will be privileged and, therefore, not permitted to be disclosed to third parties under any circumstances. Clients may be assured that information given to their legal advisors is now afforded an even greater protection than previously.
Of course, the flip side to the decision in Esso is that it will be more difficult to obtain information which may be required as part of litigious proceedings from legal professionals. While clearly advantageous to those wanting to protect it, the broader scope of the doctrine of legal professional privilege will present difficulties to those seeking such information.
For further information, contact Joe Lederman at BALDWINS, Australian Lawyers & Consultants.
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