Legal professional privilege

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In common law jurisdictions and some civil law jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.

Contents

The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future. [1]

History

The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v. Lovelace [2] the full report of which states:

Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the same process.

The principle originated as protection for individuals when accessing the knowledge and legal resources available to a lawyer and was said to stem from the "oath and honour" of the lawyer, a sort of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients would be discouraged from making full disclosure to their legal representatives. As Lord Brougham put it in Greenough v Gaskell (1833):

The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case". [3]

Australia

The Evidence Act 1995 (Cth) and identical provisions in the Evidence Act 1995 of NSW and Tasmania now control when privilege prevents evidence is adduced during trial in any court (as defined by a proceeding bound by the laws of evidence). The rules of court in NSW extends the definitions in the Evidence Act to discovery and inspection of documents. The right, under legislation, has been renamed to reflect the fact that it is a right of the client. It is now client legal privilege (as opposed to legal professional privilege). The courts regard privilege as a "substantive general principle which plays an important role in the effective and efficient administration of justice by the courts", [4] not a mere rule of evidence. As such, it extends to all forms of compulsory disclosure, including search warrants. [5] [6] Furthermore, although the legislature may restrict privilege "the law [shouldn't] ease the way for the legislature to [restrict privilege]". [7]

Canada

Solicitor–client privilege was initially a common law evidentiary principle similar to hearsay but has since become recognized as a substantive rule that is constitutionally protected. This recognition began with R. v. Solosky (1979) where Justice Dickson, in tracing its history, regarded it as a "fundamental civil and legal right" that guaranteed clients a right to privacy in their communications with their lawyers, even outside a courtroom. [8]

In R. v. McClure [2001] 1 S.C.R. 445, the Court found that solicitor–client privilege was a principle of fundamental justice, hinting that it may be protected under Section 7 of the Charter .

In its general sense, Canada has adopted John Wigmore's definition of solicitor client privilege:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. [9]

Justice Lamer set out the test for solicitor–client privilege in Decoteaux v. Mierzwinski : [10]

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

England and Wales

In England and Wales, the rules on legal professional privilege are set out in common law. The Civil Procedure Rules 1998 ('CPR') Rule 31.15 establishes a right to inspect documents in civil litigation, and provide that a party to whom a document has been disclosed (i.e. mentioned or relied upon in litigation) has a right to inspect that document (if such inspection would be proportionate given the nature of the case) - except where the party making disclosure has the right to withhold such inspection. [11]

One of these rights is legal professional privilege. It is a privilege that attaches to the client (not to the lawyer) in a client–lawyer relationship. It does not extend to advisors who are not legally qualified. [12] It may only, therefore, be waived by the client. In the law of England and Wales, legal professional privilege is divided into two types: advice privilege, and litigation privilege, the former category being more absolutely and broadly-defined than the latter.

Scotland

Legal professional privilege applies in Scotland. The Solicitors Regulation Authority (SRA) and the Law Society of Scotland regulate solicitors in respect of it. The SRA produces a Code of Conduct. [13] For Advocates, this matter is regulated by the Faculty of Advocates Code of Conduct. [14] In October 2022, the Scottish Inner House of the Court of Session (highest domestic appeal court) determined that materials subject to legal professional privilege could not be used by the Scottish Legal Complaints Commission for its investigations without client consent. [15] [16]

Turkey

The Turkish Advocacy Code outlines two types of legal professional privilege: legal advice privilege and litigation privilege. [17] Legal professional privilege prohibits—subject to potential waiver by the client—the disclosure of lawyer-client communications made for the purpose of obtaining and giving legal advice. [17] Litigation privilege prohibits—subject to potential waiver by the client—the disclosure of client-third party and lawyer-third party communications made in preparation of contemplated or pending litigation, including during settlement negotiations. [18] The Turkish Advocacy Code's rationale for the rules of legal professional privilege is that confidentiality enables lawyers to accurately encourage strong cases, which improves the efficiency of the legal system. [17]

There is a fraud exception to both litigation privilege and legal advice privilege. [17]

United States

Attorney–client privilege is a legal concept that protects communications between a client and his or her attorney and keeps the communications confidential in both civil and criminal cases. The privilege encourages open and honest communication between clients and attorneys. However, in the United States, not all state courts treat attorney communications as privileged. For instance, Washington state law and the federal courts in applying federal law protect client only communications; an attorney's communication is protected as privileged only to the extent that it contains or reveals the client's communications.[ citation needed ] In contrast, California state law protects the attorney's confidential communications regardless of whether they contain, refer to, or reveal the client's communications. In addition, the United States Supreme Court has ruled that the privilege generally does not terminate upon the client's death. See Swidler & Berlin v. United States . [19]

Exceptions

Privilege cannot be relied upon where the communication is used to facilitate a crime. [20] [21]

In civil law jurisdictions

Civil law jurisdictions approach privilege differently from common law jurisdictions. [22]

Some countries, such as China, do not have legal professional privilege. [22]

Related Research Articles

<span class="mw-page-title-main">Barrister</span> Lawyer specialised in court representation in certain jurisdictions

A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialize in courtroom advocacy and litigation. Their tasks include arguing cases in courts and tribunals, drafting legal pleadings, researching the law and giving legal opinions.

A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practise there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.

Attorney–client privilege or lawyer–client privilege is the common law doctrine of legal professional privilege in the United States. Attorney–client privilege is "[a] client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on the distribution of certain types of information.

Physician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and their doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions. Almost every jurisdiction that recognizes physician–patient privilege not to testify in court, either by statute or through case law, limits the privilege to knowledge acquired during the course of providing medical services. In some jurisdictions, conversations between a patient and physician may be privileged in both criminal and civil courts.

Accountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.

In common law, spousal privilege is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

The clergy–penitent privilege, clergy privilege, confessional privilege, priest–penitent privilege, pastor–penitent privilege, clergyman–communicant privilege, or ecclesiastical privilege, is a rule of evidence that forbids judicial inquiry into certain communications between clergy and members of their congregation. This rule recognises certain communication as privileged and not subject to otherwise obligatory disclosure, similar to attorney–client privilege between lawyers and clients. In many jurisdictions certain communications between a member of the clergy of some or all religious faiths and a person consulting them in confidence are privileged in law. In particular, Catholics, Lutherans and Anglicans, among adherents of other Christian denominations, confess their sins to priests, who are unconditionally forbidden by Church canon law from making any disclosure, a position supported by the law of many countries, although in conflict with civil (secular) law in some jurisdictions. It is a distinct concept from that of confidentiality.

In common law jurisdictions, the duty of confidentiality obliges solicitors to respect the confidentiality of their clients' affairs. Information that solicitors obtain about their clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client. Confidentiality is a prerequisite for legal professional privilege to hold.

Upjohn Co. v. United States, 449 U.S. 383 (1981), was a Supreme Court case in which the Court held that a company could invoke the attorney–client privilege to protect communications made between company lawyers and non-management employees. In doing so, the Court rejected the narrower control group test that had previously governed many organizational attorney–client privilege issues. Under the control group test, only employees who exercised direct control over the managerial decisions of the company were eligible to have their communications with corporate lawyers protected. The case also expanded the scope of the work-product doctrine.

<i>Solosky v R</i> Supreme Court of Canada case

Solosky v R (1979), [1980] 1 S.C.R. 821 is a leading Supreme Court of Canada decision on solicitor-client privilege. The court identified solicitor-client privilege as more than just a rule of evidence but as a fundamental right to all individuals.

<i>Descôteaux v Mierzwinski</i> Supreme Court of Canada case

Descôteaux v Mierzwinski, [1982] 1 SCR 860 is a leading Supreme Court of Canada decision on solicitor-client privilege. The court reaffirmed the opinion in R. v. Solosky that privilege was a substantive right that even existed outside of a proceeding.

The doctrine of priest–penitent privilege does not appear to apply in English law. The orthodox view is that under the law of England and Wales privileged communication exists only in the context of legal advice obtained from a professional adviser. A statement of the law on priest–penitent privilege is contained in the nineteenth century case of Wheeler v. Le Marchant:

In the first place, the principle protecting confidential communications is of a very limited character. [...] There are many communications, which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. [...] Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important than his life or his fortune, are not protected.

The Solicitors Regulation Authority (SRA) is the regulatory body for solicitors in England and Wales.

In Australia, legal professional privilege is a rule of law protecting communications between legal practitioners and their clients from disclosure under compulsion of court or statute. While the rule of legal professional privilege in Australia largely mirrors that of other Commonwealth jurisdictions, there are a number of notable qualifications and modifications to the privilege specific to Australia and its states, and contentious issues about the direction of the privilege.

In the law of evidence, a privilege is a rule of evidence that allows the holder of the privilege to refuse to disclose information or provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding.

In England and Wales, the principle of legal professional privilege has long been recognised by the common law. It is seen as a fundamental principle of justice, and grants a protection from disclosing evidence. It is a right that attaches to the client and so may only be waived by the client.

The Buried Bodies Case, also known as the Lake Pleasant Bodies Case, is a mid-1970s upstate New York court case where defense attorneys Frank H. Armani and Francis Belge kept secret the location of the bodies of two women murdered by their client, Robert Garrow, Sr.

The joint defense privilege, or common-interest rule, is an extension of attorney–client privilege. Under "common interest" or "joint defense" doctrine, parties with shared interest in actual or potential litigation against a common adversary may share privileged information without waiving their right to assert attorney–client privilege. Because the joint defense, "privilege sometimes may apply outside the context of actual litigation, what the parties call a 'joint defense' privilege is more aptly termed the 'common interest' rule."

The South African law of evidence forms part of the adjectival or procedural law of that country. It is based on English common law.

References

  1. ↑ "The English Law of Legal Professional Privilege - A Guide for American Attorneys". Loyola University Chicago International Law Review . 4: 40. 2006 – via Loyola University Chicago.
  2. ↑ Berd v Lovelace [1577] Cary 62
  3. ↑ Greenough v. Gaskell [1833], 1 M & K 98
  4. ↑ Goldberg v Ng (1995) 185 CLR 83
  5. ↑ MM v Australian Crime Commission [2007]FCA 2026, [34]
  6. ↑ Baker v Campbell (1983) 153 CLR 52
  7. ↑ Baker at 131
  8. ↑ Solosky, at 839
  9. ↑ Evidence in Trials at Common Law, vol. 8 (McNaughton rev. 1961) at p. 543
  10. ↑ p. 875
  11. ↑ "PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Civil Procedure Rules". www.justice.gov.uk. Retrieved 2020-11-15.
  12. ↑ "Walter Lilly & Company Ltd v Mackay & Anor[2012] EWHC 649 (TCC) at para 17". BAILII. March 15, 2012. Retrieved August 25, 2019. The protection of privilege is not intended to extend to the relationship between a person and another who is not in fact a qualifies and practising lawyer, save in exceptional circumstances like those which arose in the Calley case, which is completely different from the current case: here, the Defendants had no good reason to believe that they were employing solicitors or barristers because they were employing Knowles which does not profess to be offering the services of qualified practising solicitors and barristers.
  13. ↑ "SRA Code of Conduct for Solicitors, RELs and RFLs". www.sra.org.uk. 2023-04-06. Retrieved 2024-03-17.
  14. ↑ https://www.advocates.org.uk/media/3199/guide-to-conduct-7th-edition-october-2019.pdf Retrieved 17 March 2024
  15. ↑ Scottish Legal Complaints Commission v (1) D R Murray and J A McCusker (2) The Faculty of Advocates and The Law Society of Scotland https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csih46.pdf?sfvrsn=e89aeb8_1 Retrieved 17 March 2024
  16. ↑ "Court of Session rules legal professional privilege not overridden by third party complaint". Law Society of Scotland. Retrieved 2024-03-17.
  17. 1 2 3 4 "Rules of Procedure: The Advocacy Code" (PDF). global.tbmm.gov.tr. Retrieved 28 December 2020.
  18. ↑ Baysal, Pelin (3 January 2019). "Litigation and enforcement in Turkey: overview". Westlaw. Retrieved 28 December 2020.
  19. ↑ 524 U.S. 399 (1998).
  20. ↑ In the UK: Police and Criminal Evidence Act 1984 section 10(2)
  21. ↑ In Australia: R v Bell; Ex parte Lees (1980) 146 CLR 141
  22. 1 2 "Privilege: a world tour". signon.thomsonreuters.com. Retrieved 17 March 2021.

See also

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