Legal professional privilege and family law – can you rely on communications between your spouse and their lawyer?

Legal professional privilege protects certain communications between a client and their lawyer. Unless privilege is waived, other parties cannot access or use those communications.

What is privilege and why is it important?

Family law clients often worry about their former spouse accessing their personal emails or documents. It is a valid concern; your inbox, for example, might contain confidential emails between you and your lawyer discussing legal strategy and advice.

Communications between a party and their lawyer are protected by legal professional privilege. Privilege applies to all legal communications made for the dominant purpose of giving or obtaining legal advice. This means that:

• a party cannot be required to disclose the communications to other parties except in very limited circumstances; and
• there may be consequences for parties and their lawyers who obtain communications from another party that are subject to privilege.

If your spouse obtains private communications between you and your lawyer, they are not entitled to use those communications in court proceedings – unless privilege has been waived.

How can privilege be waived?

If a party fails to keep the privileged communication confidential, they may no longer be able to rely upon that privilege.

Privilege can be waived expressly or impliedly, for example by:

• disclosing the privileged communication e.g. sending another party a copy of the communication; or
• acting inconsistently with the maintenance of the privilege e.g. saying to your former spouse ‘my lawyer advised me that I’m going to get 60% of the property pool’.

It is easy to see how a party may inadvertently waive privilege by disclosing some of their legal advice to their former spouse. Care should always be taken with how communications to a former spouse, or their lawyer, are phrased to avoid waiving privilege.

Reducing the risk of a former spouse accessing privileged communications

It is not uncommon for separated spouses to attempt to access their former spouse’s private emails. Parties are often unaware their spouse has read communications from their lawyer until it is too late.

To avoid this, we recommend clients change their email passwords and the secret questions to their accounts (which often contain information their former spouse knows). In some cases, it may be best to create a new email account, particularly if a shared family computer was used for the account during the relationship or marriage.

If you keep a list of your passwords for email accounts, internet accounts etc., ensure this is stored in a safe location that no one else can access.

People often obtain legal and financial advice before separating from their spouse. Make sure any mail from your advisers is sent either to a private post office box or to a third-party address with their permission (e.g. to your parent’s house).

Crittendon & Collins [2017] FamCA 716

In Crittendon & Collins, 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.

Judge 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.

What can be done if another party obtains privileged documents?

If your former spouse accesses confidential communications from your lawyer, you should instruct your lawyer to write to their lawyer advising that privilege is claimed over the documents. You should also request that they immediately:

• identify which communications they accessed and when;
• identify when the communications were provided to their lawyer;
• identify which lawyers and staff accessed the communications and when; and
• destroy all copies of the communications.

If the privileged communications are referenced in any court documents, you will need to file an affidavit deposing as to how the other party obtained the information and confirm that you assert a claim of privilege over the documents. You may also need to file an Application in a Case to strike out any references to the communications in any court documents.

Depending upon the answers to the above questions, you will need to consider whether there are grounds to seek an injunction restraining your ex from instructing their lawyer, or the entire firm.

Hacking into a former spouse’s email account or opening their mail in the hope of finding correspondence from their lawyer (or for any other reason) may result in criminal charges, in addition to any sanctions imposed in family law proceedings.

If you inadvertently obtain documents that might be subject to privilege by your former spouse, do not provide copies of those documents to your lawyer or discuss their contents with anyone. You should immediately instruct your lawyer to:

• advise the other party’s lawyer that you have obtained certain documents that may be confidential; and
• request confirmation whether privilege is claimed over the documents.

If privilege is claimed, you should destroy all copies of the communications and not refer to these in court documents or by any other means.

Privilege is a complex issue. If you have any concerns about documents accessed by your former spouse, please contact one of our family lawyers.