By Zeb Holmes and Ugur Nedim
Donald Trump is fighting attempts by US prosecutors to obtain approval to review communications seized from the home and offices of his lawyer, Michael Cohen.
It is reported that Trump is concerned, among other things, about the exposure of his instructions regarding how “potential negative sources of publicity” should be dealt with.
According to the president, the communications between him and his lawyer are protected by ‘attorney client privilege’ – or client legal privilege as it is known in NSW – and the conduct of investigators amounts to an “attack on our country”.
To Trump’s anger, A US judge recently ordered Mr Cohen to disclose the identity of a client, causing the president to declare that “attorney client privilege is dead” and launch into a signature tirade against the judge and legal system.
But what Mr Trump fails to understand (or perhaps to acknowledge) is that, whether in the United States or here in Australia, the privilege between lawyers and clients is not absolute – it only encompasses certain types of communications and uses, and is subject to legal exceptions.
Purpose of lawyer/client privilege
Lawyer/client privileges generally seek to prevent the unauthorised disclosure by lawyers of instructions or legal advice to their client.
As the privilege is held by the client, not the lawyer, it is called ‘client legal privilege’ in NSW.
The rationale for the privilege is to enable clients to provide full instructions without fear of that information being disclosed to others, and in turn to facilitate the provision of complete and accurate legal advice and effective representation.
In Australia, the general proposition is that:
- As to privilege relating to advice:
“In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client’s consent, may not be given in evidence or otherwise disclosed by the legal advisor if made either:
(1) to enable the client to obtain, or the advisor to give legal advice, or assistance, or
(2) with reference to litigation that is actually taking place or was in the contemplation or anticipation of the client.”
- As to privilege relating to documents:
“Documents prepared by or communications passing between the legal adviser or client and third parties need not be given in evidence or otherwise disclosed by the client and, without the consent of the client, may not be given in evidence or otherwise disclosed by the legal adviser if they come within (2) above”. J D Heydon, Cross on Evidence.
Client legal privilege is therefore said to arise where:
- A professional relationship between a lawyer and client involving,
- Confidential communications,
- Created for the dominant purpose of legal advice.
This element can be established through evidence of an agreement (such as a cost agreement), of a formal conference (such as an office meeting or telephone conference) or even through circumstances where it can be inferred that the party asserting privilege (the client) could reasonably expect that a professional relationship had arisen.
Section 117(1) of the Evidence Acts 1995 (NSW) defines ‘confidential communication’ as one where the person who made it, or the person to whom it was made, was under an express or implied obligation when it was made not to disclose its contents.
The section similarly defines a ‘confidential document’ as one which was prepared in circumstances that, when it was prepared, the person who prepared it, or the person for whom it was prepared was under an express or implied obligation not to disclose its contents.
In the context of the admissibility of legal advice in the courtroom, section 118 of the Evidence Act provides that:
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
- A confidential communication made between the client and a lawyer; or
- A confidential communication made between 2 or more lawyers acting for the client; or
- The contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person
for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 119 substantially reproduces the above as it relates to confidential documents prepared for actual or anticipated legal proceedings in Australia or anywhere else in the world.
Dominant purpose test
Sections 118 and 119 signalled a key shift from the ‘sole purpose’ test to test ‘dominant purpose’ test.
Until the enactment of the Evidence Act in 1995, communications were only protected if made for the sole purpose of contemplated or pending litigation, or for obtaining or giving legal advice.
The High Court of Australia formally confirmed the dominant purpose test in the 1999 case of Esso Australia Resources Ltd v Commissioner of Taxation.
However, it is important to bear in mind that not every communications between a lawyer and his or her client attracts client legal privilege; only those which mainly relate legal affairs.
Loss of privilege during court proceedings
Sections 121 to 126 of the Evidence Act outline situations client legal privilege does not apply to the admissibility of evidence in court proceedings. These include:
121 – Where the client has died or where disclosure is necessary to enforce a court order,
122 – Where the client waives privilege, or consents to the lawyer disclosing information or producing materials, or where the client acts in a manner inconsistent with maintaining the privilege (eg discloses to others),
123 – Where a defendant is giving evidence in criminal proceedings, unless it is a a confidential communication or document between an associated defendant and a lawyer acting for that person in connection with the prosecution of that person.
124 – Where two or more clients have jointly retained a lawyer in civil proceeding and one or more of them wishes to disclose a confidential communication or contents of a confidential document,
126 – Certain information necessary to understand material to which privilege does not apply as a result of the preceding sections.
So, it is evident that Mr Trump’s inference that “attorney client privilege is dead” simply because investigators have sought to review materials between him and his lawyer is an overly simplistic view of the law.
Indeed if he were being investigated in NSW, material obtained pursuant to a warrant could be reviewed and even used in court in a whole range of situations – including where its main purpose was political rather than legal in nature, or where the communications were in furtherance of a fraud, any type of offence or any act whereby he might be civilly liable.