This is an extract of our Advice Privilege document, which we sell as part of our Civil Procedure Notes collection written by the top tier of Oxford students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
ESSAY PLAN 9 - advice privilege Only a lawyer can give privileged advice Legal professional privilege = 2 things: 1) advice privilege (covers communications between lawyer and client for the purposes of obtaining legal advice- privileged whether or not litigation is contemplated) and 2) litigation privilege (applies to communications between a client or his lawyers and third parties which come into existence after litigation is contemplated or commenced, with the sole or dominant purpose of obtaining advice, information, or evidence for the purposes of the litigation Thanki (2006)- no overlap between these privilege; a communication or document should be analysed as privileged under one head rather than the other and not privileged under both (cf Zuckerman, 2006). Communications between a lawyer and a client for the purposes of obtaining legal advice are privileged - protected from disclosure whether or not litigation is contemplated. It is the status of the advisor as a lawyer, not the nature of the advice given which determines whether the communications are protected by legal advice privilege. Legal advice privilege operates as an absolute protection because:Ex p B - it cannot be disapplied by exercise of judicial discretion B v Auckland District Law Society - PC: Unless waived by the holder it endures beyond the immediate occasion or context of the privileged communications
The rationale for legal advice privilege is to enable a person to consult a lawyer and tell him the whole truth knowing that what he reveals in confidence cannot be disclosed without his consent and used to his prejudice. Andrews (1994) - "modern society accepts that there is an important constitutional value in obtaining free, confident and candid legal consultation". Legal advice privilege allows a person to understand what he is legally entitled to do/not do, facilitates the entering into of valid transactions such as contracts and wills and the orderly settlement of matters arising from divorce and separation = furthers the public interest by upholding the administration of justice and the rule of law (Hale). The absence of legal advice privilege would be a risk that a client would hold back from telling him all the truth out of fear - the concern then is that the advice might be inaccurate or unsound because the lawyer has been given only an incomplete and inaccurate picture of the client's position (Baroness Hale in Three Rivers No 6).
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