Confidentiality (Legal Professional Privilege)

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This article is a topic within the subject Law, Lawyers and Society.

Required Reading

Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012), pp. .

  • [1] Definition: Some confidential detail shared between client and lawyer is protected from the obligation to disclose them in court or to the police.
  • [2] Rationale: To protect certain aspects of citizens’ dignity and gives clients a little bit more confidence in their dealings with lawyers

Jan O’Neill (2004) Legal Professional Privilege: Loosening the shackles on advice privilege, Law Society Journal, September, pp. 60-61

  • [3] The Full Court of the Federal Court in Pratt Holdings Pty Ltd v Commissioner of Taxation recognised the advice privilege - that third party communications can be protected by legal professional privilege – building upon the original litigation privilege which applied only top content that would only be used in potential litigation
  • But is a non-legal adviser considered an agent protected by privilege?
  • [4] Full court called litigation privilege a historical assumption
  • …there is now little theoretical distinction between the advice privilege and the litigation privilege
  • [5] Test: that the client’s intention to use the third party’s document to obtain legal advice was the primary or paramount reason that the document came into existence.
Probably will not work where:
    • Third party has distinct function unrelated to legal advice
    • Client intends to use information independently
  • [6] One thus needs to seek the dominant purpose

Explanatory statement from Young J, AWB Limited v The Honourable Terence Rhoderic Hudson Cole AO RFD QC and Commonwealth of Australia

  • [7] AWB was seeking a declaration that certain confidential documents from 2002 to 2006 are protected by privilege
  • Documents were released charting AWB’s payment to a Jordanian company, Alia, as well as a scandal with Tigris, another company, to rip off the Iraqi Grain Board

Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999)

Facts:
  • Esso appealed to the Federal Court in 1996 against amended income tax assessments
  • Esso disputed the privilege status of certain documents which would have been communicated for the purpose of legal advice
Issues:
  • Gleeson CJ, Gaudron and Gummow JJ: The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem
  • Use of a sole purpose or dominant purpose test?
  • Which of the two tests balances the justification of the privilege with the need to access relevant information? In this case, it is that of sole purpose
  • [8] Abrogation by statute: Does not represent a yield in privilege – it abolishes it. Parliament can only abrogate privilege by statute

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002)

Facts:
  • The ACCC ordered Meerkin and Apel (Daniels’ solicitors) to produce documents used for giving Daniels legal advice.
Issues:
  • Does the (former) s 155 of the Trade Practices Act allow the ACCC to order privileged documents?
  • Legal professional privilege is not just substantive law; it is a common law right
  • Precedents have suggested that privilege may be used for the purpose of breaching the TPA – that is false
  • Does the section of the TPA in question thus abrogate professional privilege?
Result: Daniels won

Federal Commissioner of Taxation v Citibank Ltd (1989)

Facts:
  • ATO officers raided Citibank’s premises on the basis of the Income Tax Assessment Act 1936, s 263. These included client documents
Issues:
  • Citibank did not hold the documents contractually
  • Citibank did not exercise its ability to claim privilege
  • The Commissioner of Taxation’s power should not apply to privileged documents
  • Yet Citibank had an obligation to protect its clients
Result: Appeal dismissed

End

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References

Textbook refers to Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012).

  1. Textbook, p. 107
  2. Textbook, p. 108
  3. Textbook, p. 110
  4. Textbook, p. 111
  5. Textbook, p. 112
  6. Textbook, p. 113
  7. Textbook, p. 114
  8. Textbook, p. 10.46
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