|One working definition for legal professional privilege is: “the right of a person to have withheld from evidence communications between that person and his/her adviser (or between the legal adviser and a third party), made in the course … of obtaining legal advice or with reference to litigation.” SOURCE: CCH Macquarie Concise Dictionary of Modern Law (CCH Australia Limited North Ryde 1988) page 77.|
When considering the topic of privilege, ask yourself:
|Does your organisation employ any workers that might attract privilege?|
Does your organisation have policies and procedures on privilege and its application within the workplace?|
|While other professions like accountants and social workers may also be governed by codes which require those professionals to treat client information as confidential, only legal professional privilege is ‘absolute’ as opposed to ‘qualified’ in nature.|
For example, a social worker (not working as a legal professional) can be subpoenaed to give evidence and may have only limited avenues to resist being compelled by the court to breach confidentiality. If subpoenaed to produce a client’s file in relation to a certain matter, a social worker could still assert that the information recorded on the file is confidential and that the worker owes a duty to keep that information confidential. It might then be argued in appropriate circumstances that a subpoena is too widely framed and is ultimately asking for disclosure of information that is not relevant. The court could be asked to consider the material on the file to assess whether or not the social worker should be required to release the entire file or simply relevant and much more limited parts of it. Accordingly, while the file is not privileged, the Court may take steps to protect the confidential information to the extent that is appropriate in the individual case.