By Greg Couston and Lucy Williams -
Snapshot
- A client’s legal professional privilege can be destroyed and lost relatively easily (often inadvertently) by that client’s own conduct, or the conduct of their lawyers
- Practitioners should be careful to ensure privilege is not unintentionally waived
- When dealing with privileged material, practitioners need to make sure that their client does not engage in conduct inconsistent with the maintenance of privilege
Legal Professional Privilege or, in the terms of the Evidence Act 1995 (NSW), Client Legal Privilege, is a fundamental tenet of our legal system. The doctrine has withstood attack from various quarters over the decades; but – like many things of value it has a brittle dimension. A party’s legal professional privilege can be destroyed and lost relatively easily (and sometimes through inadvertence) by that party’s own conduct, or the conduct of their lawyers. This article contains some pragmatic practice pointers on the issue of loss/waiver of privilege – specifically dealing with preliminary correspondence, discovery and cross-examination.
