Privilege does not protect lawyer-client communications when the client is engaged in fraud, even if the lawyer is unaware

Lawyers beware!  Client legal privilege does not protect communications that were made in furtherance of an illegal scheme, even where the lawyers are unaware of the illegal scheme being pursued by their clients.

In Aucare Dairy Pty Ltd v Huang [2017] FCA 746 O’Callaghan J of the Federal Court considered the authorities and noted that they show illegality to include “fraud on justice” and conduct that would “frustrate the processes of the law”.

On the facts of this case, the Court was satisfied that the applicants had established a strong prima facie case that the respondents engaged in wrongful and fraudulent conduct contrary to various legal duties.  The respondents had to produce communications with their solicitors.

The Jade report is at