Legal Professional Privilege & Privacy – aren’t they the same thing?

Legal professional privilege (really client legal privilege) applies to confidential communications between a client and the client’s lawyer for the dominant purpose of giving or receiving legal advice or for use in existing or anticipated litigation.

It was argued that where a client provides a letter to their solicitor instructing them to prepare a will, that the letter was a communication to a solicitor with a view to obtaining legal assistance.

The argument that the letter and the will itself incorporating the instructions given in the letter should attract client legal privilege as the instructions contained an implicit request for advice as to the proper form of the will.

The privilege only applies to confidential communications, although the creation of documents for use in legal proceedings can give rise to the necessary confidentiality. However where communication is limited to material in the public domain it is not privileged; the fact that a confidential communication contains some public information does not remove the privilege.

The Court rejected the claim to privilege as it failed to meet the sole purpose test . The purpose for which the documents had been brought into existence was to bring into existence a will as the record of the client’s testamentary dispositions and to serve as a document that would in due course be admitted to probate.

The High Court has changed its earlier requirement that the stipulated purpose be the sole purpose, to a requirement that it only be the ‘dominant’ purpose. The Court has stated that

‘in its ordinary meaning, dominant indicates that purpose which was the ruling, prevailing, or most influential purpose’

The purpose of extending this duty of confidence to clients  is to assist in the collection of all circumstances required to be disclosed of all the circumstances of a situation for the dominant purpose of seeking or giving legal advice or for use in legal proceedings. However, there are exceptions to this duty of confidentiality.

People often confuse the idea of privacy and confidentiality. Although they sound similar they are quite different.

Breach of a client’s confidence concerns the use of information that has been provided to a lawyer but is not readily available to the public. For instance a solicitor has a duty to keep information that you provide to them confidential – it is a privilege that resides with the client not the lawyer.

Privacy  is a set of laws regarding the use of personal information about individuals – the information might be publically available; however if a person has provided their personal details to an organisation as a part of the provision of goods and services privacy legislation may prevent those personal details from being used by the person or organisation providing that service using that personal information for any unrelated purpose. These are set out in the Australian Privacy Principles.

It would contravene the APP if a law firm provided personal information that they collected to make a Will to an insurance company in order that the insurance company could try to sell you an insurance policy – unless you gave your permission to the law firm to do so.

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