Client legal privilege (CLP) is a common law protection that serves to protect the administration of justice and the right of persons and other entities/organizations to receive private counsel regarding their legal situations, also referred to as “legal professional privilege” It covers legal advice provided to a client by a lawyer (advice privilege) and correspondence relating to real or contemplated lawsuits or court proceedings (litigation privilege).
As the right belongs to the plaintiff, not the counsel, it is called “client legal privilege”. A counsel can only reveal confidential communications if their client is obviously advised to do so. The primary aim of the CLP, however, is not to confer a right to the client’s advantage, but to promote the administration of justice.
The effective administration of justice allows clients to be able to consult with their counsel openly and honestly, without fear of sharing any details related to the legal advice they are receiving. It is well understood that civil cases can be postponed or even miscarried in the absence of immunity, as attorneys may not be able to defend their client adequately or put specific matters to the court’s attention. It is necessary to preserve candour and fairness in such interactions, since we live in a dynamic culture and our rules and legal system are quite complicated at times. It is in society’s interest that individuals (including corporations) pursue legal advice about their dealings and in seeking advice feel free to reveal all related information. The sophistication of these laws is correlated with a rising dependence on the community’s self-regulation, such as the tax system for self-assessment.
Legal privilege for customers also facilitates compliance with the rules. Since lawyers owe the court and the administration of justice a paramount responsibility, they are expected to persuade clients to follow the statute. Many entities are actually seeking to meet their legal responsibilities, particularly companies. In allowing them to achieve this, lawyers play an important role by advising on relevant duties and helping to identify and resolve possible and real violations.
The client’s legal privilege is often considered to be a fundamental individual right arising from the State’s right to privacy and the State’s right to security, especially when they are subject to regulatory or investigatory powers.
The general concept represents a certain defense of the individual against the leviathan of the modern state, particularly the poor, unintelligent and ill-informed citizen. Without it, there can be no guarantee that those in need of impartial legal counsel to deal with the demands and intricacies of modern law will be able to access it without the possibility of bias and destruction by subsequent intervention.
In recent years, consumer legal right has come under investigation, most prominently after the Royal Commission into the Oil for Food Case, involving AWB Ltd and its related businesses. Allegations of wrongful allegations of client legal privilege lead to a reference to the Australian Law Reform Commission by the then Attorney-General, Phillip Ruddock, to investigate the operation of client legal privilege in the light of Commonwealth agencies’ investigatory and regulatory powers.
To the investigation and, ultimately, to the Attorney-General, Robert McClelland, the Law Council made detailed submissions, detailing the inherent value of client legal privilege to the administration of justice.
The Law Council has highlighted the importance to the Australian legal system of client legal privilege and encourages its extension to all persons and organisations, Royal Commissions and in all other investigative or administrative contexts.
The Law Council encourages the establishment of guidance and ‘best practice’ practices to allow client legal privilege claims posed by Commonwealth entities to be efficiently and effectively handled in the light of investigations.
The Commonwealth Attorney-General is actively considering the ALRC proposals and the Law Council looks forward to partnering with the Australian Government to ensure that consumer legal right is maintained and enforced equally in all jurisdictions.