What is privilege?
The basic concept of legal professional privilege (also known as client legal privilege) is that people can communicate with their lawyer, in a candid and thorough manner, and the lawyer will keep this information secret.
In a criminal setting, privilege will usually be claimed over oral communication between a defendant and their lawyer. In civil matters (family law, contract disputes, torts (suing someone), etc), privilege will likely be claimed over certain documents.
The writer’s view on privilege is:
- there are two people you should always be completely honest with – your doctor and your lawyer;
- being entirely honest with your lawyer is the best starting point for comprehensive and frank advice;
- a sure-fire way to scuttle your own case is to trip your lawyer up in open court with an admission or revelation not previously disclosed; and
- if the lawyer forms a view they can’t represent you with the information you’ve given them, they should advise you to see another lawyer.
You should know:
- the lawyer (unless you authorise them or are about to commit a crime) cannot pass this information on;
- you, however, can pass this information on to whoever you like. You may lose your right to keep this information privileged, but you can pass it on. It is the lawyer who must not disclose the information; and
- the lawyer can’t lie for you. The lawyer can still defend you and must still keep what you have told them confidential, but their duty to the court prevents them from saying or leading something they know to be false.
Warning: The remainder of this blog is aimed at the curious amongst you. Those who want to know the origins of privilege, the current day position and an example of its application. If that’s not for you, you’re welcome to stop reading now. For those remaining, we will now talk nerdy to you…
Where did it come from?
It is suggested that the concept of privilege as we know it today is rooted in Roman custom. Except for the most serious offences, a servant was not compelled to testify against their master as the construct of the ‘household’ was considered more important than having all information necessary to adjudicate litigated disputes.
Partly in order to foster public faith in the judicial system that developed in the last millennium, concepts of judicial rights evolved – including the presumption of innocence, being judged by a jury of one’s peers and, importantly, access to legal advice. Any impediment that prevents or discourages the defendant from fully disclosing their side of events to their lawyer would render this access to legal advice largely redundant.
The first recorded case involving Privilege dates back to the 16th century.
The locus classicus of English cases on Privilege arguably belongs to Lord Brougham in the 1833 case of Greenough v Gaskell (1833) ER 39 where, at 621, his Lordship said:
“It is out of regard to the interests of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in the matters affecting rights and obligations which form the subject of all judicial proceedings. If a privilege did not exist at all, everyone would be thrown on his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half of his case.”
The NSW source of legislated privilege is found in sections 118 and 119 of the Evidence Act 1995 (NSW). The law states that information you give your lawyer for the purpose of obtaining legal advice or relating to proceedings is privileged.
How and when the client loses privilege
It is important to note that the privilege is attached to the client and not the lawyer. The client can pass on this information to whomever they choose. It is the lawyer that needs to keep it confidential.
When a client intentionally discloses a privileged communication, the privilege for this piece of communiqué has been ‘expressly’ waived. A common example of this would be written correspondence, a statement or Affidavit the client instructs their lawyer to send to the other side, police or file with the court.
However, clients can also ‘impliedly’ waive privilege if they do something inconsistent with the confidentiality otherwise contained in the communication. Put simply – if you chose to disclose part of, or something relevant to, certain information, the option for you to claim privilege on that document or communication may be lost.
Also, if you tell your lawyer you are about to commit a crime, the lawyer must obviously report this.
A somewhat gaudy example
“I did it. I killed him. I want you to get me off the hook.”
A lawyer’s paramount duty is to the court and the administration of justice. They cannot lie to the court in defence of their client.
However, in the above instance, a lawyer could still defend the admittedly guilty party should they choose to do so. The lawyer could challenge the evidence against the defendant but could not say or put forward anything they know to be untrue based on the confession. One example of what the lawyer could do would be to strongly cross examine a witness about any inconsistencies in their version of events. This may be enough to cast reasonable doubt on the case. A lawyer could not, however, put forward an alibi for the defendant they know to be untrue.
The prevailing jurisprudential view is that open and comprehensive disclosure between client and lawyer is essential for the State to administer justice, so it should be protected. We agree. Tell your lawyer everything.
The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.