Legal Professional Privilege

Legal Professional Privilege

What is legal professional privilege?

Legal professional privilege (sometimes called client professional privilege) is a rule of law that protects the confidentiality of communications between a client and their lawyer. It applies to communications made for the dominant purpose of:

• Seeking or giving legal advice; or
• Use in or obtaining material for use in legal proceedings already commenced, or reasonably anticipated at the time of the communication.

Communications between lawyers employed in the SCU Legal Office and University officers and staff are generally privileged provided the advice sought is legal, rather than management or administrative, advice.

What can I do to try to conserve legal professional privilege?

It is not enough to simply mark a document 'privileged and confidential', although it is a good idea to mark all requests for legal advice in this way. Privilege can in fact be inadvertently lost if care is not taken to maintain confidentiality, for example, by sending copies to others in an organisation who have no interest or involvement in the communication. This could have a severe detrimental effect on the University.

Important points to bear in mind are:

• The communication must be between a lawyer with a current practising certificate and the client;
• The communication must be for the dominant purpose of seeking or giving legal advice, or for use or obtaining material for use in actual or anticipated legal proceedings;
• The communication must be treated as confidential, that is to say, it should only be sent to those in the University who have a real need to know the contents of the communication;
• Communications should never be sent to anyone outside the University; and
• Particular care should be taken with emails or copies of documents that are privileged. For instance, you should not forward these on with your own notations or comments, otherwise privilege may be lost.

For further basic information about legal professional privilege, and some tips for preserving privilege, please see the following Legal Professional Privilege Factsheet 

Please contact the SCU Legal Office if you have any questions about legal professional privilege.