Legal Professional Privilege Notes

Legal Professional Privilege

Policy & Justifications

Arguments For

Litigation privilege — Fair trial

• Right to fair trial

  • Equality of arms by equipping with legal knowledge — unity of client & lawyer

    • Can’t lead misleading case contrary to instructions

    • BUT don’t have to disclose to other side

    • Lawyer’s knowledge of positive & negative aspects of case allows proper evidence-gathering

  • Access to justice — through representation

    • right to defence (in criminal context) — adequate time & facilities to prepare, legal representation: Art 6(3); S v Switzerland (1991)

  • Based on—

    • Art 6 (fair trial) — access to justice & equality of arms: Campbell & Fell v UK (ECmHR)

    • CL in UK

• Broader justification — that right to fair trial requires that must be allowed to prepare case in confidence

  • Therefore extends to comm b/w client/lawyer & 3P (witnesses/experts) — protects proofs of witnesses: Lord Denning in Re Saxton

  • Should also extend to litigants in person // any other preparation for a case not involving lawyers

• Fundamental/constitutional right, rather than mere proprietary right — any derogation to be consistent w Art 6

Advice privilege — Rule of Law

• Grew out of litigation privilege — but confined to client-lawyer communications

• Law must be capable of guiding conduct — clear, stable, prospective, etc — to be understood advice must be available

  • Ability to maximise benefits — eg tax aims to guide conduct but cannot if people don’t understand it

  • Ability to avoid penalty — nulla poena sine lege

    • Ignorance of the law no excuse — rules that are unknown or hard to understand

  • Unless confidential advice available, benefits will be monopolised by legally savvy / legally untrained might unwittingly suffer detriment

• Judicial support

  • Lord Hoffmann in Morgan Grenfell (2002) — fundamental common law right

  • Lord Scott in Three Rivers (No 4) —

    • Individuals & corporations seek advice on affairs

    • This is in the public interest

    • Full disclosure necessary, and may not be possible without confidentiality

• Instrumental justification — full & frank disclosure encouraged by privilege will lead to

  • People following the law

  • Efficiency in settling matters

  • Hale LJ in Three Rivers – in everyone’s interest that people get advice that is as accurate as possible

Both — Assumption that full disclosure won’t be made unless confidential

• Assumes that legal representation in litigation will be ineffective // legal advice unavailable because client not willing to make full disclosure

• Clients may not disclose because of—

  • Illegality/unfavourable aspects

  • Human sensibilities – wills, hiding assets from spouse, etc – not legally admissible but client doesn’t know that: Lord Rodger in Three Rivers (No 6)

  • Commercial sensitivities – in corporate context

• Judicial support —

  • Confidentiality essential to ensure full disclosure & effective legal advice — More than a rule of evidence — fundamental condition on which the administration of justice as a whole rests: Lord Taylor in Ex parte B (1996)

  • Otherwise lawyer is “like a champion going into battle unconscious of a gap in his armour”: Lord Simon in D v National Society for Prevention of Cruelty to Children

• Litigation<>Advice

  • Client more likely to hold back in context of (actual or contemplated) litigation

  • Different interests — to win <> to get accurate advice — rational client seeking advice would make full disclosure: Longmore LJ in Three Rivers (No 5)

  • May still be some reluctance to disclose for advice where risk of prosecution, human/commercial sensitivities — ordinary confidentiality may not suffice — removal of AP would leave them to live with uncertainty waiting for litigation

• Although assumption is not always true, no other rule provides certainty

Common rationale — need for private sphere for legal communication

• Grounding in ECHR

  • Litigation privilege — Art 6

  • Both — Art 8 (privacy)?

    • not absolute — and difficult to invoke in light of confidentiality from court processes only between lawyer & client

Hypothesis: true rationale is unity of lawyer & client, as required by rule of law and fair trial justifications

• Certainty of scope is critical to achieve goal

Arguments Against

• No other profession attracts such absolute privilege

• Bentham – Common law placing importance on availability of information before courts

• Only gives advantage to individual, not to administration of justice

  • BUT presumes that people know they have committed a wrong – questions of liability may be complex

• Advice will be sought anyway – no need for privilege

  • EG take-over transaction – directors likely to get advice in any event

  • BUT scope of disclosure in seeking advice may differ

• Can it justifiably be applied to everyone?

  • Eg anarchist seeks advice on terrorist acts?

  • If causal connection between advice & illegitimate act?

Other methods of protection

• Confidentiality <> immunity from disclosure in legal proceedings

  • Confidentiality guaranteed by Art 8, equitable, professional, statutory privacy duties, express/implied contractual provisions

    • But don’t provide immunity from disclosure in court proceedings — only against the world generally

  • But Art 8 not absolute, so difficult to explain why confidentiality alone should account for confining privilege to lawyers

  • Lawyer remains bound by confidentiality even if no immunity

• Restrictions on collateral use of disclosure

  • Cannot use for collateral purpose, disclose to 3^rd party (unless referred to in public hearing)

• Possibility that ignorance of the law should be an excuse

  • Different remedy as in France

  • Better fits justification

• Wide availability of law — online guides — modernisation

  • BUT not specific advice

Positive law

Establishing Privilege

Litigation <> Advice privilege

• Only LP gives protection to communications b/w client/lawyer & 3Ps

  • IE expert witness reports / witness statements

Litigation privilege

Dominant...

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