It can be difficult to differentiate between a lawyer’s secrecy and privilege obligation on face value. In order to best help lawyers settle a conflict, both principles seek to promote trust between clients and lawyers. This is enforced as a result of the great responsibility that lawyers bear as they take up the matter of a client.
Rule 9 of the Australian Solicitors’ Conduct Rules 2015 outlines the confidentiality conditions between lawyers and their clients (NSW).
Rule 9 notes that no details must be revealed by a solicitor:
Which is consumer private, AND
Obtained during the client’s engagement by the attorney.
To any person who isn’t:
A solicitor working in the legal firm of the original solicitor, or
A barrister or a person otherwise engaged for the purpose of providing the client with legal services.
Rule 9 goes on to state the extraordinary circumstances that cause solicitors to reveal information about confidential customers. That include when:
The client consents to the disclosure of the details,
By statute, the attorney is obliged (e.g. in court proceedings),
The solicitor discloses it in a confidential environment in order to seek guidance on the legal or ethical responsibilities of the solicitor,
The prosecutor shall reveal the details needed to disclose the possible commission of a serious criminal offence,
To avoid imminent serious physical harm to the client or another person, the solicitor discloses the details, OR
Information is revealed to the solicitor’s/practice insurer.
Any data and interaction transmitted between a lawyer and a client would be confidential. However, there are a variety of situations that cause this secrecy to be violated, as highlighted above.
Client legal privilege is much more secure in securing consumer information than the expected confidentiality in other matters.
Client legal protection, also referred to as legal professional privilege, is a right granted to a client in a litigation matter to safeguard such records and correspondence from being obtained by the other party. This prevents any data from being heard in court.
Privileged data can not be heard at trial; there are, however, a few instances where privilege can be lost.
The legal right of a client covers any sensitive correspondence or record that a client shares with his lawyer.
Confidential communication and documentation are described in section 117 of the Evidence Act 1995 (NSW) as:
“any communication or document made in such circumstances that, when made, either party was under an express or implied duty not to disclose its contents, irrespective of whether the confidentiality obligation arising under the law arose.”
In order to be listed as privileged, the confidential correspondence or recording must have been carried out for the purpose of providing the client with legal advice or for a litigation matter, as implemented by sections 118 and 119 of the Evidence Act 1995 (NSW).
Not only do privileged conversations have to be between the client and the counsel. The need for privilege can also excuse contact between the lawyer and third parties (on behalf of the defendant) or between the client and third parties.
For instance, drafts of documents, such as pleadings or letters of demand, or file notes taken in preparation for the trial can be examples of privileged communications.
Letters of advice and any contact made for the purpose of providing the client with legal advice are generally often called privileged information.
Privilege may be waived by the consumer, typically giving their consent by written correspondence that the content under privilege can be heard in court.
If the client, or attorney, openly revealed enough of the document/communication for the primary material to be identified, it can also be seen to be waived.
As explained in a 2001 NSW Supreme Court case in Kang v Kwan, anyone who argues that customer legal right has been lost, waived or does not apply has the burden of proving this in court.