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  • Writer's pictureElias Azadzoi

The Rule of Legal Privilege

Preserving Trust: Legal Privilege at a Glance

In the multifaceted realm of law, the concept of professional legal privilege, often referred to as 'lawyer-client privilege,' emerges as a cornerstone. Its fundamental role is to uphold the sanctity of the communications exchanged between legal professionals and their clients. This fortress of confidentiality empowers clients to seek legal counsel candidly, without the haunting specter of potential repercussions. In Victoria, Australia, these pivotal tenets are enshrined within the Evidence Act (2008), designed to grant individuals the right to protect sensitive information from compulsory disclosure, rather than governing the admissibility of said information.

Exploring the Spectrum: Four Distinct Privilege Types

Diving deeper into the world of legal privilege, there are four distinct types, each serving a unique purpose within the legal framework:

1. Legal Professional Privilege (Client Privilege):

Within sections 117 to 126, this type centers around confidential communications between clients and their legal representatives. This umbrella extends to encompass communications by multiple lawyers acting on behalf of a client and the confidential content of these exchanges, all orchestrated with the primary aim of providing tailored legal advice.

2. Religious Privilege (Section 127):

This privilege shields the confidentiality of communications within the confessional or sacramental context, ensuring the preservation of faith-based discussions.

3. Privilege Against Self-Incrimination (Sections 128 and 128A):

Serving as a shield against self-incrimination in legal proceedings, this privilege bolsters the rights of individuals facing potential legal consequences.

4. Public Interest Immunity (Sections 129-131B):

As a safeguard of information with potential public interest implications, this privilege is instrumental in preserving data integral to societal well-being.

The Fundamental Philosophy: Trust as the Bedrock

The bedrock of professional legal privilege is rooted in the necessity of trust between legal practitioners and their clients. Trust forms the essential foundation that enables clients to openly and candidly share their situations with their legal advisors. It's this trust that guarantees their right to fair and unbiased representation.

The Shocking Breach: The Lawyer X (Nicola Gobbo) Incident

Within the annals of Australian legal history lies an astonishing breach of trust, involving the infamous 'Lawyer X,' also known as Nicola Gobbo. Representing high-profile criminals, including the likes of Carl Williams and Tony Mokbel, Gobbo covertly shared privileged information with law enforcement agencies while operating as an informant. This audacious breach not only shook the legal system's core but also triggered a profound exploration of the boundaries and exceptions of legal privilege.

The Legal Framework: Professional Legal Privilege in Victoria

In Victoria, the comprehensive framework governing professional legal privilege finds its roots in statutory provisions articulated within the Evidence Act of 2008. The primary tenet, as articulated in section 134, emphasises the inadmissibility of privileged evidence. Moreover, section 132 of the Act mandates that individuals should be duly informed of their rights to make applications and objections in matters relating to privilege.

In-Depth Analysis of Key Legislative Provisions

1. Section 118 – Legal Advice:

This section is a guardian of confidential communications made between clients and their legal advisors. It stretches its protective umbrella to cover communications involving multiple lawyers acting on behalf of a client, as well as confidential documents meticulously prepared for the dominant purpose of delivering precise legal advice.

2. Section 119 – Litigation:

Section 119 is the safeguard for confidential communications between clients and other relevant parties, or between a client's lawyer and other parties. It also extends its shield over confidential documents meticulously crafted for the dominant purpose of delivering professional legal services tailored to any legal proceedings.

3. Section 120 – Unrepresented Parties:

This section extends protection to confidential communications between unrepresented parties and other relevant individuals. It also covers the content of confidential documents prepared exclusively for the dominant purpose of preparing for or conducting legal proceedings.

Peeling Back the Layers: Understanding Protected Elements

To gain a comprehensive understanding of legal professional privilege, one must delve into the precise definitions of key terms:

- Client: This term transcends just the clients who engage or employ legal practitioners. It also extends to lawyers who engage other lawyers' services, emphasising the flexibility of this privileged relationship.

- Confidential Communication/Document: The pivotal criterion is the existence of confidentiality at the time the communication or document was conceived. However, subsequent circumstances could lead to the potential loss of privilege. This section emphasises that mere failure to grant permission for disclosure does not automatically imply confidentiality.

- Lawyer: This encompasses individuals admitted to the legal profession in any Australian jurisdiction or elsewhere. While a practicing certificate serves as a significant indicator, it is not the sole determinant of whether legal advice was sufficiently independent to warrant privilege. Work conducted by a lawyer that fails to meet the dominant purpose test will not fall under the protective umbrella of privilege.

- Communication: In a legal context, communication is a multifaceted concept, extending to encompass unspoken obligations and ethical, moral, or social responsibilities. Ultimately, it hinges on the nature of the relationship, the circumstances surrounding the communication, and the context in which the documents or exchanges occur.

Legal Professional Privilege Sections

1. Section 118 – Legal Advice Privilege:

- Section 118(1)(a) and (b) safeguard confidential communications between clients and lawyers, or between multiple lawyers acting for a client.

- Section 118(1)(c) extends its protective shield over confidential documents crafted by clients, lawyers, or third parties. These documents must be created with the dominant purpose of delivering legal advice to the client.

2. Section 119 – Litigation Privilege:

This section safeguards confidential communications between clients and other relevant parties or their legal representatives, as well as confidential documents crafted exclusively for the dominant purpose of delivering professional legal services tailored to any legal proceedings.


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