14.97. The idea of limiting the privilege to lawyers with an up-to-date certificate of professional education may stem from concerns that lawyers who provide policy or risk management advice may subject all their activities to privilege. However, as the ATT Court of Appeal concluded, the dominant purpose test remains the ultimate limit on the application of privilege. The Commission considers that the fact that the lawyer does not hold a traineeship certificate will not unjustifiably increase the scope of the privilege, provided that the notification meets the test according to whether it is provided for the predominant purpose of legal advice[110] or the provision of professional legal services[111] in Australian or foreign proceedings. 14.121 If uniform laws of evidence are to reflect the common law, it is important that they do not lag behind the evolution of judicial thinking consistent with the general philosophy underlying the relevant provisions. The Commission considers this to be one such example. The commissions consider, as Stone J. argued in Pratt, that there are still crucial differences between the two types of legal privileges for clients. Legal privilege exists to protect the relationship between a lawyer and his client; Litigation privilege respects the important functions of the adversarial system. Therefore, the distinction should not be abandoned. The privilege does not apply to communications made to facilitate illegal or inappropriate purposes. This applies regardless of whether the lawyer was involved in or aware of the improper purpose.
Communications may be recorded orally, in writing or manually or electronically. All types of documents involving communications may be subject to professional secrecy. For example, notes and drafts, instructions and briefs, expert opinions, memoranda, minutes or other documents relating to information necessary to advise the client or conduct litigation on behalf of the client are protected. Expert opinions are often prepared with the primary purpose of being used in actual or anticipated legal proceedings. 14.159 The DPP of New South Wales argues that if the uniform evidentiary statutes are extended to pre-trial proceedings, section 123 should be amended to preserve the usual solicitor-client privilege in pre-trial proceedings. The privilege associated with a communication does not belong to the lawyer. Instead, it belongs to the customer. The term “solicitor-client privilege” is sometimes replaced by “solicitor-client privilege” to emphasize the nature of the privilege. On 29 November 2006, Attorney General Philip Ruddock requested the ALRC to investigate solicitor-client privilege with respect to the coercive powers of Commonwealth authorities to obtain information. On 26 September 2007, the ALRC issued a discussion paper outlining the need for a clear and consistent approach to legal privilege in Australia and its states and territories. [23] 14.168 The Commissions agree that it would not be desirable for the extension of the privilege sections of the Uniform Acts of Evidence to Inquiries to have the effect of removing the client`s legal privilege with respect to any legal advice to the DPP. The political basis of solicitor-client privilege – open and full communication between lawyer and client – also applies to the DPP.
Given the prosecution`s obligation to disclose all physical evidence, the defence could spend a significant amount of time on the defence`s requests in order to gain access to counsel that are irrelevant to the factual issues of the case. Lawyers or lawyers may also feel limited in providing advice to the DPP if such information could be provided at a later date. [164] S McNicol, Consultation, Melbourne, March 17, 2005. For example, SQMB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 392, in which it was stated that a waiver may be made even if there is no subjective intention on the part of the client to waive the privilege. 14.70 In PA 69, the commissions noted some drafting difficulties with respect to client privileges under uniform evidence legislation. [66] Section 117 defines the terms used in the section dealing with client privilege. Two proposals were made to amend the definitions of “client” and “lawyer” in the Act. [67] Solicitor-client privilege is not absolute and is not unlimited to a communication. The privilege can be waived by the client, but not by the lawyer. Therefore, a client`s intentional or accidental acts in the use of legal advice may prevent the client from asserting privilege in the future. Accidental disclosure does not result in a waiver of privilege as long as the party who made the error acts promptly as soon as it becomes aware of its error.7 Under the Patents Act 1990 (Cth) s 200 and the Trade Marks Act 1995 (Cth) s 229, communications between a registered patent or trademark attorney and a client are subject to: which is carried out for the primary purpose of advising on intellectual property, in the same way as the lien.
and to the same extent as a communication serving the predominant purpose of a lawyer providing legal advice to a client. This also applies to foreign patent and trademark attorneys. If an expert is informed confidentially to obtain an opinion on an anticipated dispute, this is usually preferred. However, if a party seeks to rely on an expert`s report in a dispute, it waives the privilege of the instructions given and the documents referred to or relied on in the expert`s report. The plenary approach undoubtedly represents a considerable extension of the privilege of deliberation, to such an extent that there are virtually no theoretical differences between the privilege of consultation and the procedural privilege. [124] 14.175 Opinions and consultations generally agree that the waiver of client privilege with respect to investigations by supervisory authorities is a matter for the respective statutes establishing these bodies. [195] Solicitor-client-client privilege does not reflect client-lawyer litigation privilege.