Client Legal Privilege (CLP), also known as “legal professional privilege”, is a common law right belonging to the client that protects legal advice given by a lawyer to his or her client and any communications relating to actual or potential court proceedings. The idea behind CLP is to facilitate the administration of justice by allowing frank discussions between lawyer and client without the fear of disclosure by the lawyer.
The protection offered by CLP can be divided into two categories. The first category relates to documents or communication made for the dominant purpose of providing legal advice, known as “legal advice privilege.” The second category relates to documents or communications made for the dominant purpose of litigation, known as “litigation privilege.” That being said, not all documents or advice are protected by CLP. For CLP to apply, two conditions must be met: (1) the communication must have been confidential and (2) the main purpose of the communication was for legal advice or for actual or potential litigation. For example, if a lawyer provided advice on both legal and commercial issues, it may not fall into these categories unless the dominant purpose was for obtaining legal advice and that advice was confidential. To ensure a document or advice is subject to CLP, it is necessary to mark documents and communications as confidential and state “subject to legal professional privilege,” as well as the purpose for which the document or advice was obtained. It is also necessary that the lawyer maintains confidentiality and doesn’t disclose the advice or document unless instructed by the client to do so.
However, CLP may also be lost if the lawyer acts in a way which is inconsistent with the obligations of confidentiality. For instance, CLP may be lost in cases of intentional disclosure, unintentional disclosure, or implied waiver. There are different types of waiver which fall under implied waiver including “disclosure waiver,”, “issue waiver” and “associated material waiver”. Disclosure waiver involves the waiver over the whole advice if the substance of the advice is disclosed; issue waiver involves waiver over privileged information in litigation; and associated material waiver is waiver of material that relates to the same issue as a document or communication already disclosed. An important point to note is that it is only the client or an individual authorised by the client who has the right to waive privilege. Generally, privilege is not waived when the document or communication is shared within the company.
Only the legal profession has Client Legal Privilege, reflecting not only the important role lawyers play in society, but also the trust which underpins the lawyer-client relationship. This is why it is critical that lawyers understand CLP and adhere to it in order to strengthen and maintain good relations with clients.