Legal Advice & Privilege

Legal Professional Privileges

Legal professional privilege is designed to protect frank communications between lawyers and their clients.  Without privilege, a lawyer could not be properly instructed as the client would not be in a position to communicate with him, freely.  He should be in a position to discuss his case fully and openly, weaknesses and all.  Legal professional privilege protects this freedom.

Legal professional privilege protects the administration of justice.  It maintains secrecy in discussions between lawyer and client.  In certain contexts, it is likely to be protected as a constitutional right. In some cases, the right must be weighed against other competing constitutional rights.

Legal professional privilege is absolute.  The courts do not balance other considerations and interests against it. It is not limited to documents prepared for the purpose of litigation.  It covers any communications for the purpose of receiving legal advice.  Communications for such purposes to solicitors or barristers, on behalf of a party or persons he represents fall within the scope of the privilege.

The material must involve or arise from a communication between the lawyer and the client.  It must arise in the course of the lawyer/client relationship.  It must be confidential of its nature. It must involve communication for the purpose of giving or receiving legal advice. The privilege is limited to communications between the client and the lawyer.  It does not cover communications with third parties. There is narrower litigation privilege which may apply.

Lawyer /Client I

Legal professional privilege will apply where the communication is with a party who represents the client.  The agent must have authority for the purpose of obtaining the legal advice. Correspondence with other professionals who represent the client, will not of themselves be privileged as in most cases, as representatives will not be agents for the purpose of giving and receiving the legal advice.

There must be a communication from the client.  Information which is seen or discovered by the lawyer does not of itself become confidential.  Information which the lawyer obtains through different channels, will not generally have the benefit of the privilege.  If however, the communication arises by virtue of professional confidence, then privilege is likely to apply.

The identity of the client is not of itself privileged, in most cases.  It may be privileged, if the naming of the client would incriminate him or where his identity is so integral to the advice sought, that disclosing the identity would reveal the advice itself.

The communication must be made with a lawyer in the course of his profession as such. A request for legal advice may be covered because it is part of the lawyer’s duty as such to give a legal advice.  Where the office of as such lawyer has not been called into action or where the communication might have been made by any other person, the privilege does not attach.

Lawyers include solicitors and barristers.  Other persons who give legal advice, but who are not qualified to do so are not covered. Although the privilege does not apply to persons who no longer practice as lawyers, it does apply if the client is unaware of this fact.

Lawyer/ Client II

The relationship need not have been formalised by a letter of engagement or other formalities.  The relationship, for the purpose of the privilege, commences when the lawyer engages with the person as such.  If the lawyer,  having invited him to discuss the matter, is not engaged or does not accept the retainer and does not subsequently act, the privilege nonetheless applies.

The communication must be intended to be confidential.  If it is instructed to be communicated or if of its nature it is to be disclosed to third parties, the privilege does not attach. Information is confidential, where it comes to the knowledge of a person in circumstances where he has notice or has agreed that the information is confidential.

It is confidential when it is communicated with this intention or is apparent or should be apparent to the recipient, that it is not to be disclosed to third parties. Communications passed for the purpose of obtaining legal advice are presumed confidential.  However, in particular cases, it may be clear that this is not so.

Litigation, Legal Advice and Legal Assistance

The communication must be for the purpose of giving or receiving legal advice. Traditionally, legal professional privilege applied to most communications between lawyer and client.  It included all things reasonably necessary in terms of communications to legal advisors, in order that legal advice might be obtained.

In Ireland, a distinction is drawn between legal advice and legal assistance.  The Irish courts have indicated that legal advice generally implies the possibility of contentious litigation or a challenge to a particular matter.  It is not required that such challenge actually emerges.

Legal assistance includes the drafting of non-contentious documents perhaps in the context of property or share transfers. Where the communication relates to a legal task, even ones commonly carried out by lawyers outside the scope of legal advice, without the possibility of contentious litigation, the Irish courts have indicated that privilege does not apply.

A non-contentious transaction may, due to circumstances, perhaps unknown to the client, develop into one that is potentially contentious, so that legal assistance may become legal advice.

The courts appear to apply the same test to litigation and legal advice privilege.  The dominant purpose must be the seeking of legal advice.It is not clear having regard to English and Irish authorities as to whether the dominant purpose test applies only to litigation privilege or legal advice privilege.

Irish case law suggests that it applies to both types of privilege.  English case law indicates that the dominant purpose requirement is not applicable to the legal advice privilege. This approach may ultimately be upheld in Ireland.

Litigation Privilege

Communications are privileged between a client and lawyer, and between a client and/or lawyer and a third-party, where the dominant purpose is to prepare for actual or apprehended litigation. The so-called “litigation privilege” and is separate to legal advice privilege.

This privilege is wider and allows both the party and the lawyer to communicate with advisers, as are necessary for the purpose of preparation of litigation.

There must be actual or contemplated litigation in order for the privilege to apply.  A reasonable prospect of litigation at the time of communication is required. The communication must be connected to the litigation.

The litigation must be anticipated or threatened.  Parties may be moving towards a non-contentious resolution, but at some point, it may become apparent that litigation is likely or inevitable. It must be likely rather than a mere possibility.  It is at that point that the litigation privilege becomes available.

Scope of Litigation Privilege

A communication is privileged if it is in preparation for the litigation.  If it is prepared for multiple purposes, it is privileged, if its dominant purpose is for the litigation.

The court will look at the position with the benefit of hindsight and determine whether use in anticipated litigation, was the dominant purpose.  It will have regard to the intentions but will look at the circumstances to ascertain the position.  The court may decide that the dominant purpose was simply to investigate the facts.

It is the purpose of the party who procured the creation of the document, that must be considered,  rather than of the party who literally prepared or wrote it.

Privilege is not allowed to cover fraud or crime.  Communications in furtherance of a criminal or fraudulent activity are not privileged.  This includes communications that are themselves criminal or are for a criminal purpose.

Matters Covered

Legal professional privilege applies to communications which are confidential and for the purpose of obtaining legal advice or contemplated litigation. The form matters less than the substance.  Where the disclosure would disclose to a material extent, confidential legal advice, then it is privileged.

The legal advice must be central. Collateral matters such as a person\’s identity and place of residence will not generally be confidential or privileged.

The privilege may apply to physical items of evidence as well as communications. Generally, a copy of a document is privileged in the same way as the original.

Privilege does not attach to documents which pre-exist legal advice.  Such documents cannot be cloaked with privilege by being given or sent to a solicitor in the context of seeking legal advice.

The immediate purpose need not be to obtain advice nor to defend the claim if the purpose of communication is to report an accident to insurers where it is probable that litigation will ensue.

If however, the litigation is only a possibility which might ensue, privilege may not be available.

Third Party Communications and Litigation

Communications between lawyer and client with a third party are privileged, where they are for the purpose of contemplated litigation.  Communications to instruct and inform an expert are privileged.  It does not extend to documents and items, on which the expert formed his opinion.

Where there is a mixed motive in the creation of a  document, it may not be privileged.  Statements made in the immediate aftermath of an accident or incident may be primarily motivated by management duties.  If this is the dominant purpose, then legal professional privilege may not apply.

Privilege attaches to communications to third parties, made for the purpose of claims or possible claims if litigation is a reasonable prospect when the documents are brought into existence. If they are for the purpose of legal advice in connection with the conduct of the litigation, they are privileged.

Limits to Privilege

A communication in furtherance of crime, fraud or iniquity, does not enjoy legal professional privilege.  The lawyer need not be aware of the criminal purpose behind the client\’s request for advice.  However, the mere fact that something is suggested which may be criminal, which the lawyer advises to be so, does not lead to  loss of privilege.

Privilege may be lost if the person seeking discovery or disclosure, can show that the client is involved in conduct such as fraud, dishonesty, moral turpitude, interference of the administration of justice.  It need not be criminal but may include civil fraud or conspiracy to injure a business.

The presence of a statutory offence or civil wrong/tort is insufficient. There must be culpable or reprehensible behaviour. Improper behaviour such as malicious prosecution or abuse of process may be sufficient to lose the privilege.

The allegation of a statutory offence or civil wrong does not by itself lead to a loss of privilege. The party seeking discovery must show that the allegation is plausible or viable and has a foundation in fact.

Fraud for this purpose need not be criminal.  It may include fraudulent breach of contract, deceit,  dishonesty or a conspiracy.  There must be an element of moral turpitude.

The lawyer need not be aware of the fraudulent or criminal intention on the part of the client. The fraud / crime-based exception requires tenable proof, in order to resist the claim for legal privilege.

A distinction may be made between previous acts or contemplated action.  In the case of previous acts, privilege is more likely to apply.

Waiver

Legal professional privilege belongs to the client and may be waived by him.  The lawyer may not waive the privilege. A waiver may be express or implied.  An implied waiver will not be readily inferred. If, however, the documents are disclosed to a third party or the opposing party, a waiver may readily be inferred.

Privilege may be waived where documents are used or referred to in an affidavit.  If the disclosure is made to a third party, it does not necessarily waive privilege.  This is particularly so if it is for a particular purpose and if confidentiality is protected.  If the disclosure is for the purpose of obtaining an advantage in proceedings, privilege is more likely to be lost.

Where disclosure is made unintentionally, the court may allow the correction of the disclosure.  However, generally, once the document is inspected, it is too late to correct the unintentional disclosure.

If inspection is procured by fraud or on inspection, it is patent that a mistake has been made, the court may grant an injunction restraining r the use of the documents.

In the case of legal professional privilege, it is the client\’s privilege rather than that of the lawyer.  However, the lawyer may lose privilege by revealing information to his opponent, while acting within the scope of his instructions.

Where a client sues his solicitors for damages for negligence or breach of contract, he necessarily waives privilege.  Otherwise, the solicitor would be unable to defend the case.  The waiver applies to matters relevant to the proceedings and is not a waiver for all purposes.

Settlements / Without Prejudice Communications

Communications for the purpose of settling a dispute are privileged from discovery and from questions at the trial. “Without prejudice” letters are generally protected by privilege provided that they are an attempt to settle or avoid litigation.  The purpose is to facilitate settlements without the risk that the same might be treated as an admission or involve the disclosure of prejudicial information.

It is argued that the basis of the privilege is the contractual or quasi-contractual agreement that the without prejudice communication should be privileged.  Privilege is not however based on contractual considerations. The better view of without prejudice correspondence is that public policy requires that the parties should be allowed to negotiate openly, without fear of adverse admissions and prejudicial disclosures.  On this wider view, there is a public policy interest in parties being able to speak really for the purpose of prospective settlement.

The mere use of the words “without prejudice” is not sufficient.  The courts have found “without prejudice” letters not to be privileged where it is not part of a genuine attempt to settle the breach.

A “without prejudice”  letter may become admissible, where it is part of a settlement agreement, for the purposes of giving effect to such agreement.

Once communications are made without prejudice, privilege may only be waived with the consent of both parties.  This applies both in the original proceedings and subsequent proceedings.

Exceptions

Exceptionally, without prejudice correspondence or negotiations may be disclosed.  Where there is a subsequent dispute about the existence of the agreement itself, the issue of privilege does not arise.  The issue is the dispute itself and statements made is the existence or otherwise of a settlement. The courts may look at the relevant facts and circumstances as to whether such an agreement has been entered.

Where there is impropriety misrepresentation or fraud, privilege may be withdrawn in order to consider whether an agreement was in fact tainted on such basis.

Disclosure may be permitted where it is claimed that the party should be estopped from taking a particular course of action.  Where a party has been induced to refrain from issuing proceedings within the time limit provided in the statute of limitations, the Court may examine the circumstances to see whether such a basis estoppel claim may be available. In this case, the Court looks at the correspondence not in the context of admissions but as to whether a particular matter has occurred, namely, that the statute of limitations might be suspended by estoppel and representation.

Without prejudice privilege will be lifted where there is impropriety.  This may arise if the circumstances would disclose improper or criminal conduct.  The circumstances must be clear.  The mere raising of an allegation or use of robust or exaggerated language will not suffice.

Under a so-called \”Calderbank\” letter, a party to litigation makes an offer of terms of settlement marked \”without prejudice save as to costs\”.  The letter is not admissible during the trial.  It may, however, be taken into account in assessing cost.

Some Exceptions

Legal professional privilege does not apply strictly in child welfare cases. They are considered inquisitorial in nature. The primary issue is the welfare and best interests of the child.  The courts take the view that the desirability of disclosure must be weighed against maintaining the privilege, in light of the interests of the child.  The power to override privilege is exercised sparingly.

Challenges to the validity of a will are not regarded as proceedings between parties, but more in the nature of an inquiry into the validity of the will. It is deemed desirable that the courts know all that the witness may know about the execution of the will. The court may be prepared to balance legal professional privilege against competing interests.

There is mandatory disclosure of expert reports in personal injury cases. The requirement applies to experts who are to be called to give evidence.  If a witness is not be called, legal privileg attaches. It may reattah, if the witness is withdrawn.

They must exchange the substance of the evidence they propose to introduce. It need not necessarily he the whole report. Some discussed in the report may not necessarily require to be disclosed under the rules.