Understanding legal professional privilege for plaintiffs in NSW
Published on December 20, 2024 by Hayley Aldrich
If you’re meeting with a lawyer for the first time, you might hear the term ‘legal professional privilege’ (LPP). This important legal principle ensures that any communication between you and your lawyer, whether it’s advice, strategy discussions, or anything related to your case, is kept confidential and cannot be used against you in court without your permission.
What is legal professional privilege?
LPP protects two main types of communication:
- Advice privilege – covers confidential discussions where you’re seeking legal advice, such as understanding your rights after an injury or accident.
- Litigation privilege – protects communication between you, your lawyer, and any experts involved in preparing for legal action, ensuring that strategies or evidence gathering remain confidential.
Legal professional privilege (LPP) is an essential aspect of the law, enabling lawyers and clients to communicate in confidence, without fear of information being disclosed to others or used in court without their consent.
LPP generally covers:
- Documents and communications prepared for giving or receiving legal advice
- Documents and communications prepared for actual or anticipated litigation
For LPP to apply, a communication or document must be made in confidence initially, and that confidence must be maintained for the privilege to remain in place.
While LPP covers lawyer-client communications, it can also extend to other materials, such as reports or working documents prepared by experts. This includes notes or memos taken during meetings with experts, and draft reports. However, exactly what is protected will depend on the context.
At common law, privilege protects only the confidential parts of a document. For example, if a document contains a privileged communication, that part is protected, but the rest of the document may not be. An expert’s working notes, for example, are generally not protected at common law since they do not directly involve communications between you and your lawyer.
However, under the Evidence Act 1995 (NSW) the situation changes. The Act protects confidential documents created primarily to provide legal advice or services related to current or anticipated litigation[1]. This includes an expert’s working notes if they are made for the purpose of assisting with the legal case. The Evidence Act applies to most legal proceedings in state and federal courts and tribunals.
Why is privilege important?
LPP allows you to speak openly and honestly with your lawyer about your case without fear that sensitive details will be exposed. For example, if you’re discussing medical issues, financial concerns, or details of an accident, that information is protected. This helps your lawyer build the strongest possible case for you, knowing that sensitive communications are safe.
Limits and exceptions
While LPP is a robust protection, there are some exceptions:
- Crime-fraud exception – communications made with the intention of committing a crime or fraud are not protected by privilege.
- Waiver – if you share privileged information with others, you might lose the protection of privilege, intentionally or unintentionally.
The Evidence Act outlines the circumstances under which privilege might be waived or overridden, including specific statutory investigations or public interest cases [2].
Confidentiality v privilege
In addition to LPP, lawyers in NSW are required to maintain the confidentiality of all client information under the Legal Profession Uniform Law. This legal obligation extends to all information shared with your lawyer, whether it’s protected by LPP.
This means that even if a communication isn’t covered by privilege, your lawyer still has an obligation to keep your details private. This provides an extra layer of protection and ensures that your personal information remains secure.
How does this apply to you as a plaintiff?
If you are seeking compensation for an injury, such as in a personal injury claim, LPP ensures that your private details—such as medical records, personal accounts of the incident, or financial information—are protected when shared with your lawyer. This confidentiality allows your legal team to prepare your case without worrying about sensitive information being disclosed.
This protection extends to your communications with experts or witnesses who might help with your case. Any reports, notes, or expert opinions prepared for the case are also covered, making sure that sensitive material is not used against you.
Practical tips to protect privilege
- Be clear about the purpose – you should ensure that your communications with your lawyer are about seeking legal advice or preparing for your case.
- Maintain confidentiality – keep privileged information within the lawyer-client relationship. Avoid sharing emails or conversations with others.
- Clarify any concerns – if you’re unsure whether something is covered by LPP, ask your lawyer. They can help you understand what’s protected.
What does the Evidence Act say about privilege?
Sections 117 to 126 of the Evidence Act outline the rules about privilege in legal proceedings. These provisions clarify that confidential communications made for legal advice or in preparation for litigation are protected. However, if information is disclosed to a third party or if the communication is not made for a legal purpose, the protection may be lost.
The Evidence Act also allows courts to determine whether LPP applies in cases where there is a dispute. If you believe that privileged documents or communications are at risk of being disclosed, your lawyer can help protect those materials from being used in court.
Why you should ask questions
Understanding LPP and confidentiality is crucial for protecting your rights as a client. If you’re ever uncertain about whether something is covered by privilege or if you have concerns about the confidentiality of your case, don’t hesitate to ask your lawyer.
Your lawyer’s job is to help you navigate these protections. By understanding legal professional privilege, you can ensure that your personal information remains private, and your case proceeds without unnecessary risks. Work closely with your lawyer and you can be confident that your communications will be kept secure and that your case will be handled with the highest standards of confidentiality and protection.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
[1] Evidence Act 1995 (NSW) sections 118 and 119.
[2] Ibid, part 3.10.
