Legal Q&A – Commercial in Confidence

WORDS: Brendan Nyst - Nyst Legal PHOTOGRAPHY Supplied

I’m currently involved in a legal dispute which involves very sensitive information regarding my business dealings. Is everything I tell my lawyer ‘commercial in confidence’?

 ‘Commercial in confidence’ is a term sometimes used in commercial transactions, when parties share information for the purpose of a business dealing between them, but do not want the information more broadly disseminated. A ‘commercial in confidence’ requirement could be applied, in certain circumstances, to communications between a lawyer and their client, but by strict application of law a much more extensive protection applies as a matter of course to information disclosed by any client to their lawyer.

In all Australian jurisdictions, communications between lawyers and their clients are subject to what is known as ‘legal professional privilege’. The effect of the legal privilege is to protect all confidential and privileged communications between the lawyer and their client from disclosure to any other person. The privilege belongs to the client, not the lawyer, which means that only the client can agree to the release of privileged information. The lawyer may not do so under any circumstances. Even if police or some other investigative or regulatory authority demanded that the lawyer give up such information, the lawyer could not lawfully do so without the client’s clear agreement unless, and until, a court expressly directed the lawyer to disclose it. No court would ever give such a direction unless it concluded that as a matter of law, legal professional privilege did not apply to the information.

If a lawyer disclosed confidential, privileged communications without their client’s express permission and instruction, and thereby breached their client’s legal professional privilege, the lawyer would commit a very serious breach of their professional obligations which could result in their being struck off. So, not surprisingly, lawyers tend to take their obligations around legal professional privilege very seriously indeed.

Legal professional privilege falls into two categories. The first is what is known as ‘advice privilege’, which applies to any communication, written or oral, between a lawyer and their client for the dominant purpose of the client seeking, and the lawyer providing, legal advice. It is not confined to the lawyer specifically telling the client what the law is, but extends to all information given by a client to the lawyer about a particular legal issue for the purpose of seeking the lawyer’s advice and all advice given by the lawyer to the client regarding what action should be taken in dealing with that legal issue. So, for example, sensitive information you may give to your lawyer regarding your business, for the purpose of obtaining advice regarding your legal dispute, is subject to legal professional privilege.

The second category is ‘litigation privilege’, which refers to communications between a lawyer and their client or any third party for the dominant purpose of existing or anticipated legal proceedings, whether they be civil or criminal in nature.

If you’re interested in seeing an intriguing fictional study of how the principle of legal professional privilege can work in practice, albeit in an American context, take a look at the 1987 TV movie Sworn to Silence, featuring Liam Neeson. The film follows a lawyer defending a man accused of murdering a young woman whose body has never been found. During the course of the case, the lawyer’s client (Neeson) reveals to him the whereabouts of the young woman’s body, leaving the lawyer morally and emotionally torn between his personal desire to pass on the information to the dead girl’s parents and his professional duty not to reveal legally privileged information. He ultimately finds himself at loggerheads over the issue with family and friends, police, media and just about everyone else in town. It’s a thought-provoking film that might give you some idea of how sacrosanct the concept of privilege is considered to be by lawyers.

So the short answer is yes, your secrets are safe. Provided what you tell your lawyer falls within one of the recognised categories of legal professional privilege, it is absolute taboo for your lawyer to reveal it to anyone without your clear and express consent.