Skip to content

Lawyer – Client confidentiality

Person holding confidential folder

Why are client meetings confidential?

Whenever someone communicates with their lawyer, whether it is by phone, email, letter, or meeting in person, all communication is protected by “client legal privilege”. This means that the lawyer and client are not allowed to share any of this communication.

Privilege applies to all lawyer-client communications that fulfill what is called, the dominant purpose and confidentiality tests. The dominant purpose test sets out that any communication or document produced for the purpose of providing legal advice, will be privileged. The communication must also be confidential for it to be privileged whereby there must have been an intention or obligation not to disclose its contents.

What if a client dies? Who is now responsible for their confidential information?

When a client dies, the executor (person responsible for the administration of their estate), has the responsibility to maintain confidentiality of the estate and not share any confidential information or communication they have had with the lawyer. While some aspects of the probate may be public and therefore not confidential and can be discussed, it is important for the executor to be careful of sharing information that has not yet been made public.

Are there any circumstances where there is an exception to privilege?

Firstly, waiver of privilege is where the client does not themselves keep their own communication and information confidential. Secondly, legal privilege does not apply to communication made with an illegal or improper purpose, for example if the client has produced fraudulent documents or evidence. Thirdly, privilege can be removed through statutory exclusions found in legislation.

How can I make sure that client legal privilege is not lost?

Firstly, it is paramount that meetings are kept confidential, therefore it is important to ensure only the client is present and no one else can hear the conversation when providing the client with verbal advice. Secondly, make it clear on documents when disclosing confidential information on written communications. And ensure you make executors of an estate aware of their rights and obligations and clarify what they can and cannot disclose to others, even their own family members.

Leave a Reply