Legal Professional Privilege
One of the key reasons Legal Professional Privilege exists is to encourage honest and open communication between a client and their lawyer so that the client can receive the legal advice they need, not just what they want.
With your lawyer
A lawyer cannot do their job and properly advise you without knowing all the facts. This is often why you will find that when you go to see a lawyer for advice, they will ask a lot of questions and might prod you or ask in a different way if you are not giving them answers. This is also why they ask you to give them all documents and communications – not just those you think are favourable.
This is not because your lawyer doesn’t believe you or is just being nosy – but it actually serves a purpose. That purpose being to discover all relevant information so that they can protect your interest and build the best legal arguments in your favour or defence in a case.
Protecting you and advising you also means sometimes telling you the “hard truth” and encouraging you to explore options that might be different to what you first thought.
In short, if you want the best outcome – don’t hold back from your lawyer.
With the Court
There are many reasons why you need to be truthful in Court, not least of which, if you lie you are committing a crime and can be found guilty of the offence of perjury and can expose yourself to penalties. This can include jail time of up to 15years. Perjury is a serious offence and occurs when a person knowingly makes a false statement while under oath or affirmation.
But there are more reasons than that. They include:
- Self-interest, including in your own reputation. No one wants a judgement on the public record which questions your honesty.
- It can undermine your whole case – even if you have a good legal basis for your claim or defence, if you get caught out in a lie, the Court is less likely to trust your evidence, which can lead to an adverse outcome.
- If you are specifically found to have been dishonest, that could affect your career - especially if you are in a profession that requires you to disclose offences related to dishonesty.
- Your obligations as a litigant in proceedings in Victoria. You would have heard from your lawyer about the Civil Procedure Act and asked to sign a Form 4A acknowledging the obligations it places on you as a litigant in proceedings. One important obligation is at section 17 and is as follows:
- 17 Overarching obligation to act honestly
The other is at section 21 and is as follows:
If you breach either of these obligations, or your lawyer or independent expert does, then you can be exposed to adverse orders from the Court, including in relation to costs.
- Justice can’t be served if all the facts are not before the Court.
Generally
Not being earnest, or keeping silent when something is material, when in business or engaging in specific transactions can expose you to legal risk and the possibility of civil proceedings being commenced against you.
Possible causes of action include:
- A claim for misleading and deceptive conduct –and noting directors can be held personally liable.
- A claim for breaching the material facts disclosure obligations under the Sale of Land Act.
- A claim for breach of contract if it was entered into based on a misrepresentation.
- A claim for defamation if you publish something false about someone else without a legitimate basis.
For more information, see our articles on these topics:
- Misleading and deceptive conduct; (Misleading and Deceptive Conduct - webinar)
- Material facts disclosure under the sale of Land Act
- Termination of contracts
- Defamation: Beware your actions online; Can a Facebook post cost you?; New defamation laws - Fairfax Media v Voller
Conclusion
Whilst you might get some short term gain by being less than frank, in the long run you very rarely get away with it. It is better to be honest (especially with your lawyer) and let your lawyer work out the best way to handle the situation in your best interests, than to have it backfire on you down the track.
How Sharrock Pitman Legal can help?
For many in our community, being involved in legal proceedings is unlikely. However, if the situation arises, it is important to seek professional advice. At Sharrock Pitman Legal, our experienced Disputes & Litigation team is committed to helping you navigate the judicial process and resolving your issue expeditiously.
If we can be of assistance, please do not hesitate to contact us on 1300 205 506 or email sp@sharrockpitman.com.au.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324 or by emailing caroline@sharrockpitman.com.au.
