Legal professional privilege (LPP) is a cornerstone of the legal system, protecting confidential communications between lawyers and their clients. It ensures individuals can seek legal advice freely, without fear that their private discussions could later be used against them. In criminal law, LPP is crucial to preparing a robust defence.

However, this privilege is not absolute. Losing LPP—whether through voluntary or inadvertent disclosure—can expose sensitive communications, potentially undermining a client’s case.

For legal professionals working on cases involving co-accused clients, understanding how to safeguard LPP is vital.

Joint defence agreements and their Australian context

Joint defence agreements (JDAs) are widely used in the United States to allow co-accused parties to share information and coordinate defence strategies without waiving privilege. While Australia doesn’t formally replicate JDAs, the Evidence Acts across Australian jurisdictions provide mechanisms to protect privilege when co-accused parties collaborate.

Under these laws, LPP is preserved when co-accused clients share a common interest in legal proceedings. However, the practicalities of maintaining privilege in such scenarios requires careful navigation.

How legal professional privilege can be lost

There are two main ways that privilege can be lost:

1. Voluntary disclosure to third parties. Voluntary disclosure is one of the simplest ways to lose LPP. This occurs when a client or their lawyer shares privileged information with a third party, such as family, business associates, or external professionals. For example, a client who discusses legal advice with a friend may unintentionally waive privilege over that communication. Once disclosed, the information can potentially be used in court.

2. Inadvertent disclosure. Privileged information may also be lost through inadvertent disclosure, such as mistakenly sending confidential documents to the wrong recipient. Courts consider whether reasonable precautions were taken to prevent such errors. Prompt corrective actions, like requesting deletion of the disclosed information, can sometimes

preserve privilege. However, negligence or significant disclosure may lead to a waiver of privilege.

Protecting LPP when sharing information with a co-accused The Evidence Acts across Australian jurisdictions ensure that LPP is not lost when communications are disclosed between co-accused parties or their lawyers, provided there is a common legal interest.

However, complications can arise:

• One party may wish to disclose privileged information while another wants to maintain confidentiality.

• A co-accused’s decision to waive privilege on a document could expose sensitive material, despite another party’s objections.

The role of Common Interest Privilege Agreements

To avoid these pitfalls, legal teams should establish Common Interest Privilege Agreements (CIPAs). These agreements formalise the relationship between co-accused parties and provide clear guidelines to protect LPP during collaboration.

A CIPA should:

• Identify the common interest shared by the parties. In criminal proceedings, this often involves the defence of the charges laid, or likely to be laid against the parties. , • Explicitly state that sharing information does not constitute a waiver of privilege. • Clarify that sharing information is not mandatory.

• Confirm that the parties agree not to use the privileged material for any purpose inconsistent with the parties’ common interest.

• Require parties to maintain disclosed materials confidentially and restrict third-party access. • Establish protocols for reporting unauthorised disclosures or potential conflicts of interest.

By incorporating these provisions, CIPAs ensure that co-accused parties can collaborate effectively while maintaining ethical standards and protecting privileged information.

Conclusion

While Australia’s Evidence Acts provide a framework for preserving LPP between co-accused, relying solely on statutory protections can be risky. A well-drafted Common Interest Privilege Agreement is best practice for legal teams handling joint defences.

Such agreements not only safeguard privileged communications but also foster trust and clarity between parties, ensuring a unified and robust defence strategy.

For commercial lawyers navigating the complexities of co-accused cases, CIPAs are an indispensable tool in preserving client confidentiality and upholding the principles of justice.

Doogue + George are available for consultation on the drafting of the CIPA’s and advice regarding protecting privilege in criminal law matters.