Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

Discovery and privilege


A lawyer who acts for a party in a proceeding must, to the best of the lawyer’s ability, ensure that discovery obligations are fully complied with by the lawyer’s client and that the rules of privilege are adhered to. A lawyer must not continue to act if, to the lawyer’s knowledge, there has been a breach of discovery obligations by the lawyer’s client and the client refuses to remedy that breach.


A lawyer acting for a litigant must advise the client of the scope of the client’s obligations in respect of discovery, including the continuing nature of those obligations up to and including the time of final judgment, and that discovered documents may be used only for the purposes of the litigation and not for any other purpose. The lawyer must, to the best of the lawyer’s ability, ensure that the client understands and fulfils those obligations.


A lawyer must not claim privilege on behalf of a client unless there are proper grounds for doing so.


A lawyer must not, other than by application to the court, seek to obtain on behalf of a client information or documents that the lawyer knows to be privileged unless every person holding that privilege, after having been advised of the existence of the privilege and consequences of waiver, waives that privilege.


If a lawyer becomes aware that privileged information or documents have been inadvertently released in circumstances where privilege has not been waived, the lawyer must not disclose the contents of the material to a client, must inform the other lawyer (or litigant if unrepresented) of the release, and must return any documents forthwith. This rule applies despite the rules relating to disclosure contained in chapter 7.