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Avoid Waiving Client Legal Privilege

Janice Yew | October 21st, 2015

Don’t Waive Goodbye to your Client Legal Privilege Did you know that if you inadvertently disclose your legal advice to a third party, you may be waiving your right to claim client legal privilege over that information? This can prove detrimental in the context of legal proceedings. During litigation, parties to a legal dispute are generally required to provide (or ‘discover’).

Don’t Waive Goodbye to your Client Legal Privilege

Did you know that if you inadvertently disclose your legal advice to a third party, you may be waiving your right to claim client legal privilege over that information? This can prove detrimental in the context of legal proceedings.

During litigation, parties to a legal dispute are generally required to provide (or ‘discover’) certain documents relevant to the dispute to their opponent in a process known as ‘discovery’.

This process is intended to facilitate a speedier and cheaper resolution to the dispute by clarifying the facts and permitting each side to better assess the strengths and weaknesses of each party’s case, promoting an out-of-court settlement.

During this process however, legal advice provided by a lawyer to a client is generally protected by what is known as client legal privilege (or legal professional privilege). This means that documents for the purpose of obtaining or providing legal advice, or for the purpose of existing or reasonably contemplated judicial proceedings, are exempted from the discovery process and need not be provided to the other side. This rule encourages clients to be frank with their lawyers and disclose all relevant information so that they can get better legal advice and the dispute can be resolved more efficiently and appropriately. It also reduces the potential for trade competitors to obtain potentially sensitive details about a business that may be disclosed to lawyers in the course of obtaining legal advice.

Nevertheless, there is an exception to this exception. A client can be considered to have waived their client legal privilege if they disclose legal advice they have received to any third party, whether intentionally or inadvertently. Even if the full document containing the advice is not disclosed, simply explaining the conclusions or the “gist” of the advice to somebody can be enough to waive the privilege and can lead to the document being included in the discovery process, in which case the opposing party will be able to obtain the document in question.

This has important consequences for anybody obtaining legal advice. Even if you are not currently involved in a dispute that may go to court, you should ensure that any legal advice you receive is kept confidential. If you send, show or explain documents containing legal advice to any third party, even a friendly one, or if you even communicate the “gist” of legal advice you have received in documents, you may later be required to send those documents to opponents in any future disputes that arise. This could lead to your opponents obtaining sensitive information about your business and create further problems at an inconvenient time.

If you wish to take action based on any legal advice you have received and are unsure of whether you will be waiving your client legal privilege in doing so, or if you have any queries about dispute resolution or litigation processes, please seek our assistance on 03 9620 9660.

Janice Yew

Janice Yew

Lawyer, BCom JD at mdp
Janice joined mdp in 2013 as a law clerk while completing her Juris Doctor at the University of Melbourne. In 2015, she came onboard full-time as a law graduate, and started working in the firm’s property, commercial and intellectual property practices.
Janice Yew

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