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Daughter’s disclosure of wife’s documents a breach of legal professional privilege

Legal professional privilege is a fundamental right of a client that protects the disclosure of certain communication between a client and their lawyer when the communication is for the dominant purpose of seeking or providing legal advice or for use in legal proceedings.

The purpose of legal professional privilege is to enable a client to provide full and frank disclosure to their lawyer without fear that this information will be used against them. This in turn enables lawyers to provide competent and independent legal advice.

An issue surrounding legal professional privilege was recently raised in the case of Crittendon & Collins [2017] FamCA 716.

In this matter, the wife’s daughter disclosed to the husband a number of the wife’s documents, which would ordinarily have been protected by legal professional privilege. The husband forwarded the documents to his lawyers. The husband acknowledged that he thought this would give him an advantage in their court proceedings. The husband’s lawyers first advised the wife’s lawyers almost five months later that they had the documents.

The wife applied to restrain the husband’s lawyers from continuing to act for him. The husband opposed the application. He proposed that another solicitor from the same firm could act for him (that solicitor having jointly worked with the husband’s current lawyer on the file) with an information barrier installed to prevent other staff in the firm from accessing the privileged documents.

Justice Carew determined that the proposed information barrier was ‘too little too late’ and there was a risk the information in the privileged documents had already reached other staff in the office.

The husband was restrained from engaging his current lawyers and he was therefore forced to find new legal representation. Further, the husband was restrained from discussing the contents of the privileged documents with anyone else or making use of any information contained in them.

 

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