A refresher on safeguarding privileged information

What is legally privileged information?

While ‘private’ information is information a person (or entity) may not want to disclose, ‘privileged’ information is information which a person (or entity) can refuse to disclose, including for the purposes of court proceedings.

This article will provide an overview of three common examples of privileged information – information subject to legal professional privilege, information subject to without prejudice privilege, and information subject to the privilege against self-incrimination – as well as some other limited protections.

Legal professional privilege

Legal professional privilege (LPP) prevents the disclosure of confidential communications between a lawyer and a client which were brought into existence for the dominant purpose of:

a)   obtaining, or providing, legal advice or legal services; or

b)   use in existing or anticipated litigation.

LPP belongs to a client and can therefore only be waived by the client, or by a lawyer acting with the client’s consent.

Waivers can be express or implied. Simply put, a client will be taken to have waived LPP where its actions are inconsistent with the maintenance of confidentiality, such as where a client discloses the substance of legal advice it has received.

Tips:

• avoid specifying the contents of legal advice you receive;
• be careful not to forward any email chains containing information subject to LPP;
• seek legal advice before making any deliberate waivers of LPP, including limited waivers to third parties such as insurers and creditors; and
• if LPP communications are inadvertently disclosed, notify the recipient of the mistake, confirm that the communication is confidential and that LPP was not intended to be waived, and request that the recipient delete all copies.

Without prejudice privilege

Without prejudice privilege (WPP) covers communications made by parties in a genuine attempt to settle a dispute.

The words ‘without prejudice’ often preface letters and settlement offers in an attempt to invoke WPP and prevent later disclosure in litigation. However, merely using the words ‘without prejudice’ in a communication will not invoke WPP. At the same time, the fact that a communication does not contain the words ‘without prejudice’ will not necessarily prevent WPP from applying. The key to invoking WPP is the substance of the communication – i.e., whether it honestly relates to a genuine attempt to negotiate a settlement.

There are some exceptions to WPP’s application. For example, even where a communication is held to be covered, WPP will not protect dishonesty; if a party later attempts to mislead a court during proceedings, the relevant ‘without prejudice’ communication may be disclosed to prove the lie.

Privilege against self-incrimination

The privilege against self-incrimination prevents the disclosure of information which could incriminate an individual for an offence – importantly, this form of privilege is not available to corporations. To invoke the privilege, an individual must demonstrate reasonable grounds for claiming it, such as a genuine risk of prosecution if the information is disclosed. Even where the privilege is invoked, any non-incriminating information must still be disclosed.

Other notable protections

1.    Commercially sensitive information

In certain circumstances, information containing trade secrets and other commercial information may be deemed ‘commercially sensitive’ and treated as confidential during litigation. Commercially sensitive information can be exempt from disclosure, or disclosed subject to parties providing a confidentiality undertaking and withheld from public court records.

2.    Accountant’s concession

The accountant’s concession can apply to treat certain documents containing advice from accounting or tax advisors as confidential. However, this concession is not as robust as ‘privileged’ information; it is applied at the Commissioner of Taxation’s discretion and can similarly be waived by the Commissioner in select circumstances, such as the investigation of fraud. Where fraud is investigated, it has been implied that even the privilege against self-incrimination will not prevent an individual’s obligation to produce evidence.

3.    Spousal privilege

Spousal privilege can apply in select circumstances to prevent the disclosure by one spouse of information which may incriminate the other spouse. In modern Australia, however, this privilege has limited application. Spousal privilege has been confirmed by the High Court to only exist in relation to criminal proceedings, and even then, it is not a blanket right; spouses and other family members can nonetheless be compelled to give evidence, including in matters of family violence.

The upshot

There are few tools to protect confidential information and lawfully prevent its disclosure. Of these, legal professional privilege is arguably the most robust. Individuals and entities should be aware of precisely what confidential information they hold, and cautiously safeguard any privileges or protections that apply.

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This article includes general information only and is not specific to your situation. If you require assistance in relation to anything contained within this article, please contact us.