What is Legal Professional Privilege?

Legal Professional Privilege


You may have heard the phrase ‘Legal Professional Privilege’, but what does it mean here in Australia and how does is apply to you and your relationship with your lawyer?


What is legal professional privilege?

One of the longest surviving and most fundamental pillars of the legal system is the privilege between a client and their lawyer. Legal Professional Privilege (“LPP”) extends to all areas of law and is enshrined in various State and Commonwealth legislation and in common law.

Legal Professional Privilege protects a client from their confidential information being shared, disclosed or discussed with anyone who is not their lawyer or a member of their lawyer’s firm.

Legal Professional Privilege allows you to communicate freely with your lawyer. When you give your lawyer all information, documents, and communications relating to your matter, they are in a better position to provide you with the best advice and representation.


What information is protected?

Documents or information you give to your lawyer for the dominant purpose of obtaining legal advice or for actual or anticipated litigation will almost always be protected by LPP.

There are two types of legal privilege – legal advice privilege and litigation privilege.

In the context of litigation privilege, LPP applies to communications between a client and their lawyer and some forms of communication between a lawyer and a third party.

When obtaining legal advice, the legal advice privilege protects documents and communications that were given for the dominant purpose of obtaining that advice. This can include, for example, tax records or bank statements where advice is sought with respect to a taxation matter.


Common examples of documents or communications where LPP applies includes:

  • Written or verbal legal advice.
  • Notes taken in meetings or during phone calls.
  • Emails between clients and lawyers and some third parties.


Exceptions to Legal Professional Privilege

There are exceptions to LPP where a lawyer may breach confidentiality and LPP. These include:

  • When disclosure is authorised by the client.
  • When the law compels disclosure.
  • To enforce the lawyer’s entitlement to remuneration.
  • When the lawyer is obtaining advice in connection with their legal ethical duty.
  • In order to defend disciplinary or legal proceedings against a lawyer.
  • When disclosure would prevent commission of a serious criminal offence or in order to prevent imminent serious harm.


Can I waive Legal Professional Privilege?

Legal Professional Privilege can be waived either expressly or impliedly when, for example:

  • You give your lawyer consent to disclose privileged information.
  • you act inconsistently with the confidential nature of the communication.
  • you state in a proceeding that you did or did not do a certain act based on legal advice you were given. This statement would prompt further questions into your state of mind and any or all legal advice given to you would then be relevant, thereby waiving privilege.


Are illegal documents and communications covered by Legal Professional Privilege?

Documents or communications arising from illegal or improper purposes are not protected by LPP. That being said, you should not withhold illegal documents or communications from your lawyer if you need legal advice or representation. Lawyers have a duty to act in the best interests of their client and by fully disclosing all information to them your lawyer will be able to provide you with accurate and well-rounded advice.

It is important to note here that although a lawyer’s duty is to act in the best interests of their client, they have a paramount duty to act in the interests of the court and will always instruct a client to act lawfully.



Legal Professional Privilege and confidentiality allows full and frank disclosure between you and your lawyer. The team at Miller Sockhill are professional, non-judgemental and will undertake your matter in the strictest confidence.


If you need advice or litigation, speak to the experts at Miller Sockhill Lawyers today on 07 5444 4750.

Follow the links to read more articles from our experienced team Family Law: Before Court – Pre Action Procedures, Enforcement Hearing Process, and Procedural Fairness.