5. Managing risks to legal privilege when providing integrated legal assistance services
5.1As discussed in Chapter 4, uncertainty about how legal privilege applies to integrated legal assistance services—and how it interacts with professional disclosure obligations—creates a heightened risk that legal privilege will be inadvertently lost. This chapter examines how integrated legal assistance service providers manage that risk, and the costs and potential unintended consequences of these risk management strategies.
5.2If legally privileged information is disclosed, the consequences may be extremely serious. The use of a client’s information in child protection, family violence or family law proceedings may result in a criminal conviction, the removal of children, and further harm by a person using family violence.
Sector guidelines
5.3The lack of certainty surrounding the application of the law on legal privilege to integrated legal assistance services makes it is difficult for service providers to know which practices will undermine legal privilege, and which will not. For this reason, service providers have collaborated across the legal assistance sector to develop practice guidelines.
5.4To address the complexities involved in the delivery of integrated legal assistance services, the Federation of Community Legal Centres created the Integrated Legal and Social Support Network. In 2018, the Network published the Integrated Practice Toolkit (the Toolkit) as a ‘framework for understanding and minimising risks related to legal professional privilege and mandatory reporting in the context of integrated service models’.[131]
5.5In 2021, Eastern Community Legal Centre (ECLC) released the Integrated Practice–Better Practice Principles.[132] These principles do not explicitly address the risk of clients losing the protection of legal privilege, though they do recommend that integrated practice programs consider the challenges presented by client confidentiality.[133] The principles focus on mitigating risks through program design and obtaining client consent.[134]
Program design
5.6To preserve legal privilege, the Toolkit suggests service providers consider implementing rigid service provision and information barriers between legal and social service professionals. On page 22, we described this model as loosely integrated.
5.7The requirement for legal advice or litigation to be the dominant purpose for legal privilege to be preserved means that the Toolkit recommends that any joint meetings between lawyers, clients and social service professionals be structured ‘so that the legal matters are the focus, with non-legal needs being addressed in a separate part of the meeting’.[135]
5.8If a client becomes distressed during an appointment with their lawyer, and the lawyer invites a social worker in to assess the client’s social support needs, the Toolkit advises:
Consider separating the meetings and making the client aware of the difference between the two meetings, particularly if the client is going to disclose something the social worker may be obliged to report if not protected by privilege.[136]
5.9On establishing information barriers, the Toolkit advises:
Collaborating medical and legal teams must establish strict protocols including shadow files and firewalls to protect records of legal communications from becoming part of the medical records.[137]
5.10By protecting legal privilege in this way, however, service providers may overly constrain the operation of integrated service delivery and inhibit the timely and effective resolution of the client’s legal and social needs.
Client consent
5.11An alternative approach canvassed in Integrated Practice–Better Practice Principles is to inform clients about the potential loss of privilege as part of obtaining client consent to engage with the service. This may give legal assistance service providers the confidence to provide closely integrated legal assistance services, which we described in more detail on pages 22 and 24.
5.12ECLC’S MABELS program, for example, which embeds legal assistance and family violence support in the maternal child health system, builds informed consent regarding legal privilege into the intake process:
At intake, the woman is provided with the option of seeing either the family violence lawyer, the family violence advocate, or both in the one appointment. At this point, the woman is advised of the different roles and professional skills of the family violence lawyer and the family violence advocate as well as the potential benefits of having two different professionals working collaboratively. The woman is also made aware of the different professional responsibilities of each profession, including the possible implications on her right to legal professional privilege that the traditional lawyer-client relationship attracts. The woman is given a choice as to the type of service that she would like to receive based on her own assessment of her needs.[138]
5.13Given the complexity of the law on legal privilege and its application to integrated legal assistance services, this process inevitably adds to the cognitive load for clients already grappling with intersecting legal and social issues. Though entirely justifiable in the circumstances, the consent model places the burden on clients to make speculative decisions about potential future legal consequences that largely depend on the specific circumstances of each case.
Consequences of risk mitigation
5.14The ways in which integrated legal assistance service providers have been compelled to manage risks associated with legal privilege can themselves have adverse consequences. These include overly restricting service integration and exposing clients’ confidential legal information, causing harm.
Overly restricting integration
5.15Where legal and social service professionals are advised to limit joint meetings and information sharing, this can reduce meaningful service integration. It can undermine access to justice by limiting the support clients need to resolve complex socio‑legal issues that require both legal and social expertise.[139]
5.16In practice, this may mean that a client with an intellectual disability is unable to have a trusted support worker present during a legal consultation, or that a lawyer feels compelled to disengage when discussions move beyond strictly legal matters, to avoid the risk of losing legal privilege.
5.17When multiple professionals are involved but operate in isolation from one another, complex problems that depend on coordinated professional input may stagnate or remain unresolved.
5.18Reduced integration can also shift the burden onto clients to reconcile conflicting advice from different professionals. The Commission has heard accounts of clients feeling uncertain about who to trust when legal and social service advice appears inconsistent, which can undermine confidence in both services.[140]
5.19Constraints on collaboration may also erode trust between professionals. An evaluation of a health justice partnership involving Inner Melbourne Community Legal Centre found that social workers believed they could provide more effective support—particularly to clients with cognitive impairment—if lawyers consistently shared information such as appointment dates, reminders and documentation requirements.[141]
5.20These limitations may discourage early engagement with services, increasing the likelihood that legal issues go unidentified until they escalate.
5.21Clients with the most complex needs—who would also benefit most from integrated support—are often the most adversely affected when service integration is limited because of concerns about legal privilege.
Exposing private legal information
5.22Even where integrated legal assistance services rely on strict separation of service delivery and record management through information barriers, there remains a risk that records may be subpoenaed and confidential legal information exposed.
5.23This risk is particularly acute for clients experiencing family violence, as subpoena processes can be used by perpetrators as a form of systems abuse, enabling ongoing control, surveillance, and boundary violations. As indicated in Case Study 4 on pages 31-32, the fear of a hostile party accessing personal information contained in integrated legal assistance service records can cause further harm and trauma to the client.
5.24For clients in crisis, however, the hypothetical loss of legal privilege at some stage in the future is an abstract prospect, and usually a much lower priority than resolving their immediate problems. For clients experiencing disadvantage, accessing the wraparound support integrated legal assistance services can provide may be much more important in the short term.
5.25While consent processes may protect lawyers from liability where a client suffers harm following the loss of privilege in an integrated practice setting, they cannot mitigate the serious and foreseeable risks to clients arising from the disclosure of sensitive legal information.
5.26Given the lack of clarity in the law governing legal privilege in integrated legal assistance service settings, it is difficult to accurately explain the scope of the privilege and the associated risks to clients. This raises concerns that clients may be unable to provide genuinely informed consent or may be overwhelmed by complex legal considerations in addition to their existing legal and personal challenges.
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Federation of Community Legal Centres Victoria, Integrated Practice Toolkit: A Guide to Help Understand Privilege and Mandatory Reporting in Integrated Practices (Report, September 2018) 3.
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Eastern Community Legal Centre, Integrated Practice – Better Practice Principles (Report, 2021) 9 <https://eclc.org.au/wp-content/uploads/ECLC-Better-Practice-Principles-Integrated-Practice-Report.pdf>.
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Ibid.
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Ibid.
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Federation of Community Legal Centres Victoria, Integrated Practice Toolkit: A Guide to Help Understand Privilege and Mandatory Reporting in Integrated Practices (Report, September 2018) 10.
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Ibid 9.
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Paula Galowitz et al, ‘Ethical Issues in Medical-Legal Partnership’ in Elizabeth Tobin Tyler, et al (Eds)’ in Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership (Carolina Academic Press, 2011) 173.
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MABELS and Eastern Community Legal Centre, ‘It Couldn’t Have Come at a Better Time’: Early Intervention Family Violence Legal Assistance (Report, September 2018) <https://www.eclc.org.au/wp-content/uploads/ItCouldntHaveComeAtABetterTime-MABELS_EasternCLC.pdf>.
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See discussion of access to justice benefits at paragraphs 3.13-3.18.
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Preliminary Consultation 1 (Confidential).
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Inner Melbourne Community Legal, Partners in Care: The Benefits of Community Lawyers Working in a Hospital Setting (Report, 2018) 9 <https://imcl.org.au/assets/downloads/IMCL_report_FA_web.pdf>.
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