What legal professional privilege actually protects Two forms of legal professional privilege What legal privilege is not In-house lawyers and privilege Waiver and breach are not the same thing Example of waiver Example of breach What happens when privilege is breached Why businesses still underestimate this Case Study Legal Privilege Risk Check Bottom Line References

We Do Legal

Legal professional privilege in Australia: what it protects, what it isn’t, and where businesses slip

Navigation

Someone starts a meeting and hits record.

A lawyer is on the call.
A few minutes in, someone says, “We probably shouldn’t be recording this.”

That moment feels small. It often becomes important later.

What Is Legal Professional Privilege?

Legal professional privilege protects confidential communications made for the dominant purpose of getting or giving legal advice, or use in existing or reasonably anticipated litigation. In Australia, this protection exists at common law and as client legal privilege under the Evidence Acts.

The privilege exists to encourage full and frank communication between clients and their lawyers, which courts have repeatedly recognised as essential to the proper administration of justice.

What privilege actually protects

Legal professional privilege is not triggered by involving a lawyer. It protects confidential communications where the dominant purpose is obtaining legal advice or preparing for litigation.

Privilege is most likely to apply to:

What privilege does not protect

Privilege weakens or disappears where communications are not confidential, are primarily commercial, or are shared too broadly, even if a lawyer is involved.

As a result, privilege will not usually extend to:

underlying facts or information, which exist independently of legal advice
commercial strategy where legal input is secondary or incidental
documents merely because a lawyer was copied into an email chain
communications that have been widely circulated beyond those who need to know

The dominant purpose test

Most disputes about privilege turn on purpose. If a communication is primarily commercial, with legal input added along the way, privilege is unlikely to apply.

If it is primarily legal, with commercial consequences flowing from it, privilege is far more likely to be upheld.

Here’s the brutal truth: legal professional privilege in Australia fails not through law, but through habits, sharing, recordings, and assumptions made before disputes arise.

What legal privilege is not

Two forms of legal professional privilege in Australia

In Australia, legal professional privilege exists at common law and as client legal privilege under the Evidence Acts. Both protect confidential communications made for the dominant purpose of legal advice or litigation. The practical risk issues discussed here apply to both.

Advice Privilege

Advice privilege protects confidential communications between lawyer and client made for the dominant purpose of giving or receiving legal advice. This applies whether the advice relates to litigation or not.

Litigation privilege

Litigation privilege protects confidential communications made for the dominant purpose of existing or reasonably anticipated litigation. This can include communications with third parties, provided the dominant purpose test is met.

Both forms require confidentiality and purpose. Without these elements, privilege fails.

Common Misconceptions That Create Risk

The lawyer was on the email, so it's privileged

Copying a lawyer does not automatically create privilege. Courts look at the substance of the communication. If the email is primarily about commercial decisions, operations, or general business matters, privilege may not apply even if legal input was sought.

We can record this because it's a legal discussion

Recording a privileged meeting does not destroy privilege by itself. What matters is what happens next. Who can access the recording? Where is it stored? Is it shared beyond the privileged circle? Once material moves outside a tight and controlled group, privilege becomes arguable.

Our in-house lawyer handles it differently

In-house lawyers have the same privilege protections as external counsel, provided they are acting in a legal capacity and giving independent legal advice. The problem arises when in-house lawyers wear multiple hats, including legal, commercial, and operational. When those roles blur, privilege can weaken. Courts examine substance, not titles.

We can share it internally without risk

Privilege requires confidentiality. When legal advice is forwarded to people who don’t need it, commented on broadly, or distributed across departments, the confidential nature weakens. Each additional recipient creates another point where privilege can be challenged.

The Difference Between Waiver and Breach

These concepts are often confused, but they have different consequences.

What is a waiver?

Waiver is about choice.
It can be expressed (you deliberately disclose the advice) or implied through conduct that is inconsistent with maintaining confidentiality. When you selectively quote legal advice to support your negotiating position, or rely on it to justify a decision to third parties, you have likely waived privilege.

A Waiver Example:
A company receives written legal advice about a regulatory risk. During negotiations with a counterparty, an executive selectively quotes that advice to support the company’s position. By relying on the advice to advance its interests, the company has acted inconsistently with keeping it confidential. Privilege is likely waived, and the other side may be able to demand disclosure of the full advice.

What is a breach?

Breach is about loss of control. Advice leaks. A recording is shared without authority. Material ends up somewhere it should not. Under Australian law, a breach does not automatically destroy privilege. Courts can restrain the use of privileged material even after unauthorised disclosure.

A Breach Example:
A recording of a privileged meeting is mistakenly uploaded to a shared internal drive and accessed by staff who were not authorised to see it. The disclosure was not intentional and not used to gain advantage. Privilege may still exist, and a court may restrain further use of the material.

The distinction matters because waiver is permanent while breach can sometimes be remedied through court intervention.

Bottom line: waiver is a choice. Breach is a loss of control. Courts treat them very differently, and so should businesses.

Where Businesses Actually Lose Privilege

Legal professional privilege usually fails through everyday business practices, not legal misunderstanding. Here’s where the problems typically surface:

Circulation patterns

Legal advice starts with the intended recipient, then gets forwarded with commentary, then shared with a broader team “for context.” Each step dilutes the confidential nature. By the time five or ten people have seen it, arguing that it remained confidential becomes difficult.

Meeting recordings and transcripts

Many businesses now record everything by default. When privileged discussions are recorded and stored in accessible systems, or when transcripts are distributed routinely, the controlled environment required for privilege breaks down.

Document management systems

Privileged material stored in general access folders, shared drives without restricted permissions, or cloud storage accessible to broad groups creates problems. Access controls matter. Courts will ask who could view the material, not just who did view it.

Mixed-purpose communications

A detailed email discusses commercial strategy, includes financial projections, covers operational matters, and ends with “please confirm our legal position.” The legal component is present but not dominant. Privilege fails.

External advisors and consultants

Bringing non-lawyers into privileged discussions can destroy privilege unless they are acting as agents of the lawyer or client for the purpose of the legal advice. When accountants, consultants, or other advisors are included, the question becomes whether their involvement was necessary for the legal advice to be sought or given.

How Courts Assess Privilege Claims

When privilege is disputed, courts examine several factors:

Purpose:
Was the dominant purpose of the communication to give or receive legal advice, or was it broader? Commercial considerations can be present, but they cannot be the primary driver.

Confidentiality in practice:
How was the material actually handled? Who had access? Were restrictions placed on distribution? Was the material treated as sensitive?

Timing:
For litigation privilege, was litigation reasonably anticipated at the time? Vague concerns about possible future disputes are not enough.

Independence of advice:
Particularly for in-house lawyers, was the advice given in a legal capacity with appropriate independence, or was it embedded in broader business decision-making?

The burden of proving privilege rests with the party claiming it. Courts do not assume privilege exists. It must be established through evidence.

Practical Steps to Protect Privilege

Be explicit about purpose

When seeking legal advice, make it clear that you are doing so for legal purposes. Label communications appropriately, but remember that labels alone do not create privilege. The substance must match.

Control distribution

Limit circulation to those who genuinely need the legal advice for legitimate purposes. Before forwarding privileged material, ask whether the additional recipient needs it for the legal matter at hand.

Separate legal from commercial

When a discussion covers both legal advice and business strategy, consider documenting them separately. This makes it easier to maintain privilege over the legal component.

Secure Storage

Store privileged material in restricted-access locations with clear permissions. Avoid general shared drives or systems where multiple people can access it without specific authorisation.

Training for in-house counsel

Store privileged material in restricted-access locations with clear permissions. Avoid general shared drives or systems where multiple people can access it without specific authorisation.

Handle recordings carefully

If meetings involving legal advice are recorded, implement strict protocols for access, storage, and distribution. Consider whether recording is necessary at all.

Respond immediately to breaches

If privileged material is disclosed without authority, act quickly. Contact the recipient, demand return or destruction, and consider seeking legal orders if necessary. Speed matters in these situations.

What happens when privilege is breached

These situations are rarely neat.

Lawyers move quickly.
Urgent court applications follow.
Arguments focus on use, not just possession.

Sometimes documents are returned or destroyed. Sometimes their use is limited. Sometimes the damage cannot be fully undone. Outcomes turn on detail, timing, and conduct – how the breach occurred and what happened immediately after.

Courts take legal professional privilege seriously, but they do not treat it as untouchable.

The reality: Every case turns on its facts. The quality of your response to a breach often determines whether the situation can be contained or whether it escalates.

Why This Matters More Now

Business moves faster than it used to. Communications are more frequent, more casual, and more widely distributed. Recording and storing everything has become standard practice. Remote work means privileged discussions happen on platforms where access controls may be weak.

These changes create more opportunities for privilege to be undermined accidentally. The legal principles have not changed, but the environment in which privilege must be maintained has become more complex.

Most businesses do not think seriously about privilege until something breaks (a dispute, a regulatory investigation, a relationship that sours and changes how old material is viewed). By then, the question is not what you intended to protect. It is what the law thinks you did with it.

Those two do not always align.

Under Australian common law, legal professional privilege allows a person to resist disclosure of communications with their lawyer where the communications were made for the dominant purpose of giving or obtaining legal advice or services. The privilege exists to encourage full and frank disclosure to legal advisers and supports the proper administration of justice.

— Australian Law Reform Commission (ALRC Report 129)

The Bottom Line

Legal professional privilege fails through habits more often than through legal error.

The cost rarely shows up immediately. It surfaces later, when disputes turn ordinary records into evidence.

The protection is valuable when you need it, but only if you have maintained it properly before you needed it. That requires attention to how advice is sought, documented, stored, and shared in the routine flow of business.

Need clarity on how your business handles privileged communications? We can review your practices around legal advice, meetings, and document management to identify and reduce risk before issues arise.

Need clarity on legal professional privilege? We can review how your business handles advice, meetings, and recordings to reduce risk before issues arise.

Legal Privilege Risk Check

A practical self-assessment for Australian businesses

Instructions: Answer based on what your business actually does (not what you intend). You will receive immediate feedback and a risk summary at the end.

References

This article is for general information only and doesn’t constitute legal advice. Get specific legal advice for your situation. All information is current as of January 2026.

Mark Lazarus

Mark Lazarus, the visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

Mark Lazarus