From: Craig Wright (cwright@bdosyd.com.au)
Date: Wed Oct 19 2005 - 20:07:06 EDT
Hello,
First I speak in relation to common law and admit I have little
experience with civil law jurisdictions (eg the US).
The House of Lords (Lord Carswell) has made clear there are two main
types of legal professional privilege:
i) legal advice privilege, and
ii) litigation privilege.
Legal advice privilege protects from disclosure communications between a
lawyer in his professional capacity and his client, provided they are
confidential and are for the purposes of seeking or giving legal advice.
Communications with an independent third party (even if created with the
purpose of providing legal advice to the client) are not covered by this
head of privilege, which applies whether or not there is any litigation.
Litigation privilege arises only where litigation or other adversarial
proceedings are contemplated or ongoing. In addition to documents that
would be protected by legal advice privilege, litigation privilege
protects all communications produced for the sole or dominant purpose of
the litigation, including all communications between;
i) a lawyer and his client; and
ii) the lawyer or client and an independent third party such as
a factual or expert witness.
Although the Law Lords considered that the Court of Appeal in "Three
Rivers and others v. Governor and Company of the Bank of England (No 6)
[2004] 2 WLR 1065" did not give legal advice privilege its proper scope
and defined it too restrictively. Lords Scott, Rodger, Carswell and
Baroness Hale all referred approvingly to the Court of Appeal decision
in Balabel v Air India [1988] 1 Ch 317, where Taylor LJ said that, for
the purposes of attracting legal advice privilege:
'... legal advice is not confined to telling the client the law;
it must include advice as to what should prudently and sensibly be done
in the relevant legal context.'
Privilege only applied in cases namely whether lawyers are being asked
'qua lawyers' (in their capacity as lawyers) to provide legal advice.
So, for instance, advice by a solicitor on business matters, including
investment policy and finance policy, may not have a relevant legal
context.
Lord Scott has made comments "are obiter" (made in passing) which could
apply in limited circumstances. These however are not binding.
Craig
The attached document is from the University of Pennsylvania. As stated
I have little experience with Civil Law jurisdictions such as the US,
but this may be or interest.
THE ATTORNEY-CLIENT PRIVILEGE
I. INTRODUCTION
The attorney-client privilege is an essential element of our legal
system. The privilege promotes full communication between an attorney
and his or her clients, who need not fear that these communications will
be disclosed to others. The privilege belongs to the client, and the
attorney must hold client communications in the strictest of confidence.
II. ELEMENTS OF THE ATTORNEY-CLIENT PRIVILEGE
The elements of the attorney-client privilege are:
The party seeking the protection of the privilege must be an actual or
prospective client. The party or client can be a corporation. Since a
corporation acts through individuals, management must assert the
privilege on behalf of the entity. Communications to counsel from
current employees regarding matters within the scope of their duties can
be protected in this manner.
The communication must be between the client and an attorney acting as
counsel for the client. The privilege protects communications to and
from attorneys, encompasses communications with attorneys agents and
extends to communications conveying advice of counsel. Third party
communications (e.g., reports of consultants retained by a corporation)
generally are not protected, unless the consultant is retained directly
by counsel.
The communication must be made in confidence, outside the presence of
third parties. "Public" communications are not protected. Discussions of
an advisory committee composed of community representatives as well as
Health System members, for example, would be beyond the scope of the
privilege.
The purpose of the communication must be to secure or provide an opinion
of law or legal assistance. The privilege protects legal advice and
factual information communicated for the purpose of securing and
rendering legal advice. The privilege does not protect the underlying
facts, general legal discussions, business or other non-legal advice.
The privilege must be asserted. The privilege does not automatically
attach, and it must be claimed at the time of demand by a third party.
The privilege belongs to the corporation, not to individual trustees,
managers or employees. A corporation can waive the privilege over the
objections of individual employees, should it choose to do so.
The privilege is easily lost or "waived" by disclosures to third
parties. The privilege can be lost by voluntary disclosure (e.g., in
response to interrogatories or subpoenas). Also, involuntary or
accidental disclosure may destroy the privilege.
III. EXCEPTIONS
The privilege does not attach to communications in furtherance of an
ongoing or prospective illegal activity. In addition, the privilege does
not apply when an attorney defends himself or herself against charges of
wrongful conduct (e.g., client asserts malpractice in representation).
IV. WHEN TO SEEK PROTECTION
Members of the Health System should be mindful of maintaining the
attorney-client privilege in a variety of circumstances, including:
In anticipation of potential litigation.
During the investigation of past conduct that may raise legal concerns.
Seeking advice on structuring new ventures (e.g., proposed merger).
Peer review and risk management (e.g., quality improvement; malpractice
defense).
Any other sensitive issues where legal input may be helpful and
confidentiality is critical.
V. INVOKING THE ATTORNEY-CLIENT PRIVILEGE: ORAL COMMUNICATIONS
For the attorney-client privilege to protect oral communications, it is
best to have an attorney from Legal Affairs participate directly in the
discussion. Therefore, counsel should be present when the purpose of any
meeting is to obtain or discuss legal advice, or to gather information
needed to obtain legal advice or assistance. Only employees who have a
need-to-know should attend such meetings, and non-client third parties
should not attend. Be careful not to divulge privileged communications
in minutes or other memoranda.
Do not discuss attorney-client information on: (1) mobile telephones; or
(2) in public places (such as elevators) where you would expect to be
overheard.
VI. INVOKING THE ATTORNEY-CLIENT PRIVILEGE: WRITTEN COMMUNICATIONS
The privilege may be invoked in memoranda, correspondence and other
written communications by adhering to the following guidelines:
Identify and assert the privilege on the document, i.e., mark the
document "Attorney/Client Privileged Communication."
Send the document to or from a Health System attorney and limit
distribution to a need-to-know basis.
Identify all recipients on the document, with no blind copies.
Avoid the attachment of unprivileged material or written notes on the
document.
Treat the document in a confidential manner and maintain the document in
a secure place.
Information contained on computer disks, hard drives and back-up systems
may also be protected by the attorney-client privilege.
VII. EXECUTIVE COMMUNICATIONS IN THE ABSENCE OF COUNSEL
Executives may communicate legal advice received from counsel to other
executives or employees who have a need-to-know without destroying the
privilege by identifying communication as legal advice, limiting
communication to counsels advice, not including underlying facts and
segregating legal discussion from other topics.
VIII. DEALING WITH INADVERTENT DISCLOSURES
When there are inadvertent disclosures, take immediate action by
consulting counsel, telling the recipient the disclosure was
inadvertent, requesting return of any written materials and confirming
these steps in writing, if appropriate.
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