The Supreme Court of New Zealand, their equivalent of our High Court, handed down a decision on the litigation limb of legal professional privilege on 12 August 2010.  Chief Justice Elias, with whom the rest of the Court agreed, held that: privilege could attach to an anonymous provision of information to a litigant (who happened [...]

[Read more →]

I never manage to keep up with all the cases about whether in-house counsel’s communications with others in their company may attract legal professional privilege, and if so in what circumstances. I do know that you would want to take great care in preparing affidavits in support of such a claim. The latest decision is [...]

[Read more →]

In Tulloch (deceased) v Braybon [2010] NSWSC 640, a witness was being cross-examined.  He answered a question responsively.  Then, he added some unresponsive material, and it was argued that this little unexpected and unresponsive addendum meant that it had become unfair to maintain client legal privilege over some associated subject matter. Justice Brereton held that [...]

[Read more →]

If you are a solicitor and someone other than your client or former client has lodged a disciplinary complaint against you in Victoria, you should not disclose the subject matter of any communications to which legal professional privilege attaches, or might arguably attach, unless you are instructed to do so by your client or former [...]

[Read more →]

In Schulman v Abbot Tout Lawyers (a firm) t/a Abbott Tout Solicitors [2010] FCA 308, a plaintiff sued his former lawyers for misleading and deceptive conduct.  At the same time as the misleading representations, which were in the nature of legal advice, were alleged to have been made by them to him, he had been [...]

[Read more →]

They’ve changed the law in relation to legal professional privilege on us. The common law has been abolished, at least in relation to compulsory processes (discovery, subpoenas, interrogatories, notice to produce) in fora where the new Evidence Act, 2008 applies, and the adduction of evidence in those fora. Two legal professional privilege regimes are now [...]

[Read more →]

Several recent posts have been about the implied waiver which is said to be an incident of clients suing their former solicitors for negligence.  They are simply case notes.  Some of the cases are English.  All were decided under a law different from that which from 1 January 2010 applies in Victorian court proceedings, a [...]

[Read more →]

Benecke v National Australia Bank (1993) 35 NSWLR 110 is one of the best known Australian cases about imputed waiver in relation to making allegations about the course of the retainer of former lawyers.  It is not, however, a case about imputed waiver in professional negligence suits against former solicitors, since this was not such [...]

[Read more →]

Back from Vanuatu, a pleasant place, I am slaving away at a 10,000 word paper on the application of the Evidence Act, 2008 to civil cases involving lawyers.  In due course, no doubt, I will subject you to a serialised version of it.  One of the things I am considering is that species of implied [...]

[Read more →]

Tax advice is given by lawyers and accountants alike.  Lawyers’ advice is privileged by legal professional privilege (also known as client legal privilege), but accountants’ advice is not, at least not under the advice limb. If you ever need authority for that proposition, it is Regina (Prudential plc and Another) v Special Commissioner of Income [...]

[Read more →]