In the recent decision of Fraser v Fraser the Western Australian Supreme Court reaffirmed the principle that conduct by a party which is inconsistent with the desire to maintain the confidentiality of communications between that party and their lawyers may result in the implied waiver of legal professional privilege over the communications.
Fraser v Fraser involved a claim for unpaid interest under a loan agreement and the content of an affidavit filed by the defendants in opposition to the plaintiffs’ summary judgment application. The issue before the court was whether, by referring to legal advice in the defendants’ affidavit, the defendants had impliedly waived legal professional privilege over the advice in question. Acting Justice Strk held that by referring to that advice the defendants acted inconsistently with the maintenance of confidentiality over the advice and had thereby waived privilege.
Why privilege was waived
Whilst legal professional privilege is an important common law right, if a party engages in conduct that is inconsistent with the maintenance of the privilege then that party will have waived that right. Whether there is inconsistency depends on the context and circumstances of the case. It is an objective assessment by the court of the party’s conduct and the onus of establishing an implied waiver is on the party seeking to displace the existence of the legal professional privilege. The inconsistency refers to the contradiction between the confidential nature of the communications and the subsequent disclosure of certain information that exposes the communication to scrutiny.
In this case, the defendants had made more than a mere reference to the fact that they had received legal advice. They had in fact disclosed in their affidavit the substance and conclusions of advice that they had received from their lawyers at different points in time. While the disclosure of the advice was done for a forensic purpose to refute the plaintiffs’ claim for summary judgment, the disclosure was inconsistent with the maintenance of confidentiality over the advice.
Proceed with caution when disclosing legal advice
Fraser v Fraser is a salient reminder that parties to proceedings and their lawyers should always proceed cautiously when considering whether legal advice should be partially or entirely disclosed for any reason. While mere reference to the fact that legal advice has been obtained may not result in privilege being waived, disclosing the substance, nature or conclusions of that advice could result in the party impliedly waiving their rights to subsequently maintain the privilege.