Client legal privilege is a card lawyers love to use when they’re ducking and weaving for cover. When lawyers refuse to disclose basic information, it raises significant legal and ethical concerns.

For instance, when asking for evidence of their contract with the bank or the name of the bank officer they are working with.

In Australia, while client confidentiality and legal professional privilege are important principles, they don’t provide unlimited protection for lawyers and their clients.

There are limitations for the “client legal privilege” excuse. Like when lawyers are engaging in potentially unlawful or unfair practices, such as refusing to provide basic evidence in a debt collection scenario.

Understanding Client Legal Privilege

In Australia, legal professional privilege (also known as client legal privilege) protects communications between a lawyer and their client from being disclosed without the client’s consent.

The purpose of this privilege is so clients can seek legal advice and representation in confidence. However, it’s important to understand the limits of this privilege in the context of your situation.

Key Points About Legal Professional Privilege:

  • What’s protected? Legal professional privilege generally protects confidential communications made for the purpose of obtaining legal advice or preparing for litigation.
  • Who benefits? The client (in this case, the bank) benefits from this privilege, not the lawyer. This means the bank (as the client) would be the party that can waive or assert the privilege, not the lawyer.

Limits to Privilege:

  • Evidence of the debt: Legal professional privilege typically doesn’t extend to documents or evidence created or held for the purpose of commercial transactions (such as debt records, payment histories, etc.).
  • Proof of debt (e.g., account statements, loan agreements, records of payment) can’t be shielded by privilege simply because a lawyer is involved.

Refusal to Disclose the Name of the Bank Officer

When lawyers refuse to disclose the name of the bank officer they’re dealing with, it’s highly irregular and raises several red flags:

  • Lack of Accountability: In any legitimate business or legal transaction, there should be transparency about who is responsible for the matter. It could be a tactic to avoid accountability and create confusion for the consumer.
  • It prevents the customer from knowing which bank officer is making decisions or claims about the alleged debt.
  • No Clear Authority: Failing to identify the person with authority to instruct the lawyers, casts doubt on the validity of the entire debt collection process. Lawyers may be acting without proper authority from the bank. Or claims being made are not based on legitimate instructions. What if it’s automated by an AI generated process, so that no living man or woman at the bank has issued instructions?
  • Unprofessional Conduct: A refusal to disclose the relevant officer’s name is unprofessional and could be viewed as an attempt to obscure the real facts behind the debt claim.

Bank’s Role in Debt Collection

When a bank engages lawyers or third-party debt collectors to recover debts, they’re still required to act within the law, ensuring transparency in their dealings with customers:

  • Proof of Debt: The bank must provide clear evidence of the debt. This includes supporting documentation such as loan agreements, account statements, and any evidence of payment history. Lawyers sending demands on behalf of the bank must have access to such documents. They should be able to provide them when requested.
  • Obligations Under the National Consumer Credit Protection Act (NCCP Act): Bank staff and agents must comply with the NCCP Act and National Credit Code. These require that a debtor is provided with clear documentation regarding the debt and the status of the account.

What “Client Legal Privilege” Can’t Protect

Client legal privilege can’t be used to shield debt-related documents that should be disclosed in the normal course of a debt collection process.

  • Evidence of the debt: If you request information such as account statements, proof of the debt, or the bank’s involvement in the debt collection process, it’s not covered by client legal privilege.
  • The bank must provide this information if it’s relevant to the debt collection.
  • Instructions from the bank: Lawyers acting on behalf of a client (the bank) are required to disclose basic information, like the
    • relationship between the parties (for example, which bank officer is involved in the decision-making process).
    • Information regarding the contractual relationship between the lawyer and bank isn’t protected if it’s part of the debt collection process.

We need to know who we’re dealing with at the bank, right?

  • Legal advice: Confidential legal advice given by a lawyer to the bank is protected
    • Documents and communications generated during the debt recovery process (e.g., demand letters, proof of debt) are not protected simply because they are handled by a lawyer.

Lodge a Complaint

If the lawyers aren’t providing proof of the debt, lodge a complaint with AFCA (the Australian Financial Complaints Authority Limited). It’s not a government agency, but an “independent” body that handles disputes between consumers and financial institutions.

One should question how “independent”, since it relies on membership fees from financial institutions it deals with. Classic case of the fox guarding the hen-house.

AFCA can investigate the bank’s conduct and help resolve the dispute… Most times, it seems, in the bank’s favour. Why bite the hand that feeds you?

File a complaint with ASIC (the Australian Securities and Investments Commission), oversees the National Consumer Credit Protection Act.

ASIC can investigate whether the debt collection practices comply with the law. Again, good luck with that, as ASIC doesn’t deal with individual customer complaints!

Seek Legal Advice
Consumer law specialists can advise you on how to formally dispute the debt. They can help you take legal action if necessary. And also help you deal with unjustified legal threats. As well as ensuring the bank and its lawyers comply with Australian laws.

Conclusion

In Australia, client legal privilege doesn’t provide unlimited protection to lawyers or their clients with debt collection. Lawyers must provide evidence of the debt. And why hide the name of the bank officer if relevant to the collection process? Refusing to do so may be a breach of legal obligations and unfair conduct.

You have the right to challenge this behaviour through formal complaints or legal action. And you should demand proof of the debt and transparency from the bank and its legal representatives.

This seems to be a delicate matter for ASIC, AFCA and ACCC actors. And none of these actors want to stick their noses in. After all, why upset the apple cart? Why ruin their chances of securing an even cushier “revolving door” promotion with one of the banks?

When you’re in such a situation, it’s critical to keep records. Request proof of debt, and don’t give up ensuring your rights are protected.

As you’ll learn from other posts on this website, they all use adverb-verb-babble, and state no facts.

You just have to prove their fictitious use of language, and ask them to deny that. DWM devoted his whole life to this campaign, fighting for your freedom. Now it’s your turn to learn.

We’d love to read your comments below.