Rules on Legal Privilege

[3] The principle of confidentiality between clients and lawyers is implemented through related legal bodies: solicitor-client privilege, the work product doctrine and the rule of confidentiality enshrined in professional ethics. Solicitor-client privilege and the work product doctrine apply to courts and other proceedings in which a lawyer may be summoned as a witness or otherwise called upon to present evidence about a client. The rule of confidentiality between client and lawyer applies in situations other than those where the lawyer is invited to testify by compulsion by law. For example, the confidentiality rule applies not only to matters communicated confidentially by the client, but also to all information relating to the representation, regardless of the source. A lawyer may not disclose such information unless permitted or required by professional ethics or other legislation. See also scope. However, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. If information can be collected from a source other than privileged communications, then the underlying information itself is not privileged.21 In other words, solicitor-client privilege protects “communications made for the purpose of obtaining legal advice; It does not protect the information transmitted. 22 Clients and lawyers must consider this important fact: simply passing something on to a lawyer will not prevent the underlying facts from being forced to be disclosed if they can be discovered from a non-privileged source.23 Once a client has received confidential advice from a lawyer over which he or she can safely claim privilege, follows the ongoing challenge of keeping them. This question highlights the distinction between procedural privilege and legal advice privilege, i.e.

the former is bound by communication with non-legal third parties, while the latter does not. Thus, if a dispute is reasonably contemplated, imminent or exists and the subject matter of the communication is primarily related to the proceedings, procedural privilege protects both confidential advice from non-lawyers and advice from a lawyer, which the client has subsequently referred to a third party. Whether or not procedural privilege is applicable depends on the circumstances, but the wisest approach would be to ignore it. Indeed, the preparation and retention of risk assessment reports is a general procedural step carried out to ensure prudent operation, so that some reports cannot be said to serve the interests of litigation as the main objective. Notwithstanding the above, and assuming that this scenario does not meet the “reasonable consideration” test required to establish procedural privilege, the rule confirmed in the Supreme Court`s prudential decision would apply and the legal advice privilege would not be tied to the expert`s report. The wording of House and Senate bills differs in the treatment of civil lawsuits and proceedings. The House bill rule applies to evidence relating to “an element of a claim or defence.” If any evidence purports to support or reject a claim or defence, or any element of a claim or defence, and if the law of the State contains the rule governing that claim or defence, the State Privilege Act applies to that evidence. For example, suppose Smith talks to Jones, his attorney, about a case involving a recent stock sale that is under SEC investigation. Jones asks Smith if she received confidential, non-public information before selling her stock, and Smith silently nods. Although no words were exchanged, this communication between Smith and his lawyer is clearly protected by privilege. [15] A lawyer may be ordered to disclose information about the representation of a client by a court or other court or government agency that is required by another Act to compel disclosure.

Without the client`s informed consent to do otherwise, the lawyer must make on behalf of the client any non-frivolous claim that the assignment is not authorized by any other law or that the requested information is protected from disclosure by solicitor-client privilege or other applicable law. In the event of an unfavourable decision, the lawyer must consult the client on the possibility of an appeal to the extent required by Rule 1.4. However, unless a review is requested, clause (b)(6) allows counsel to comply with the court order. Death of a client. The privilege may be violated in the event of the death of a testator-client in the event of a dispute between the heirs, legatees or other parties of the deceased who claim the deceased client. This principle arose from the protection of the individual in access to legal knowledge and resources available to a lawyer and is supposed to result from the lawyer`s “oath and honour”, a kind of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexity of the legal and judicial system without assistance. Without protection, however, the quality of advice would suffer, as clients would be deterred from giving full disclosure to their legal representatives. As Lord Brougham said in Greenough v Gaskell (1833): [9] A lawyer`s obligations of confidentiality do not prevent a lawyer from seeking confidential legal advice on his or her personal responsibility to comply with these rules. In most cases, the disclosure of information to obtain such advice is implicitly authorized for the attorney to make the representation.

Although disclosure is not implicitly authorized, subsection (b)(4) permits such disclosure because it is important for a lawyer to comply with the Code of Professional Conduct. Solicitor-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the privilege of testimony date back to the Roman Republic, and its use was already firmly entrenched in English law during the reign of Elizabeth I in the 16th century. On the basis of the concept of honour, privilege precluded any statement by the lawyer against the client.1 An express contract is not necessary to establish a lawyer-client relationship; The relationship may be implicit from the behaviour of the parties. However, the relationship cannot exist unilaterally in the mind of the potential client, unless there is a “reasonable presumption” that the relationship exists between lawyer and client. The implied relationship can be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the potential client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner. While this list of factors is illustrative, none of these factors alone will confirm the existence of a solicitor-client relationship.12 Take, for example, our earlier hypothesis.