Legal Professional Privilege
Legal professional privilege subsists between the client and the solicitor. The effect of privilege is to prevent disclosure of client information or details of the instructions to third parties, other than where expressly or impliedly permitted by the client.
The effect is that the content of such communications may not be compelled in court or on discovery. Professional privilege is distinct from, but similar in terms to the professional duty to keep the client’s information confidential.
Legal professional privilege applies to communications in connection with legal advice. The matter protected may be written or oral. It is not limited to communications in the course of proceedings. It does not apply to communications made for the purpose of being passed on to the opposite party in a dispute.
Privilege may be modified by statute. A range of legislation has limited some aspects of solicitor client confidentiality and legal professional privilege. In particular, legislation in relation to anti-money laundering and taxation gives the Gardai, Revenue and Gardai and other authorities powers in relation to discovering and requiring production of documents.
Tax legislation provides for some exceptions in relation to material which is subject to legal professional privilege. The term of the exception depends on the legislation.
Limits to Privilege
Privilege may be waived intentionally or unintentionally. If material is disclosed by mistake, the recipient solicitor is not generally entitled to use the information and privilege is retained, where the recipient solicitor realises or ought to realise that an obvious mistake has been made in making the information available.
The privilege does not apply to communications made for a fraudulent or unlawful purpose. It does not apply to communications for the purpose of assistance in the commission of a crime.
In the case of a joint retainer, communications made to a solicitor for the benefit of all clients jointly must usually be disclosed to all of them. Privilege is lost in relation to documents filed in court.
Duty of Confidentiality
The professional duty of confidentiality applies to all communications between a solicitor and client It applies to the existence of the relationship itself. It is implied into the terms of the contract for legal services. Matters relating to the client’s affairs may only be disclosed with the express consent of the client, by order of court or other body exercising legally binding powers.
A solicitor may not disclose matters to the authorities adverse to the client’s interest, in the absence of one of the relevant exceptions. If a solicitor is summonsed to court to attend on subpoena, the court may determine the extent of privilege that is available in the circumstances.
In the case of probate, the executor is the client. Information should not be disclosed to third parties, including beneficiaries, without the executor’s consent. It may be appropriate to supply an extract from the will to a particular beneficiary. On completion of the estate, an account should be furnished to the residuary beneficiaries or other parties to whom they are directly relevant.
Family law files are subject to additional privacy considerations. Most hearings are held in camera or without the public being present. A solicitor should not disclose the contents of a family law file to a third party even if he has his own clients’ consent.
Limits & Moral Duties
Confidentiality does not apply for the purpose of committing a crime or fraud. The solicitor is entitled to communicate this matter to a third party. Where there is a serious risk to the well being a third party or client, the solicitor maybe entitled to disclose information to prevent the same, although the position is unclear.
If the client lacks mental capacity or is exhibiting suicidal tendencies, the solicitor should encourage the client to visit an appropriate professional. He may consider making a confidential referral if he believes the client will not take the advice.
Where a solicitor is aware of risk of an abuse to the third party which requires notification to health authorities which the client is unwilling to take, the solicitor should advise the client to encourage the third party to contact the health authorities or medical practitioner.
If the solicitor is aware of a death threat or threat of serious injury to a client, he should encourage the client to report the matter to the Garda.
Where in cases of sexual or physical abuse or ongoing neglect of a child or where there is a risk to the child’s life or health which the client won’t disclose, the solicitor may be justified in overriding breaching the duty of confidentiality by a confidential referral to a medical practitioner Statute now applies.
Solicitors must arrange their offices so that the duty to protect client information is secured. Where offices are shared with non-solicitors, arrangement shall be in place to restrict access to confidential information, where they are held on hard files or computer records. Where electronic records are kept offsite, solicitors must take reasonable steps to ensure that the information is kept confidential.
Where IT maintenance contractors will have access to information, the solicitor must ensure that they are reputable, and an appropriate confidentiality agreement should be signed. Where material is shared, stored offsite, solicitors must take reasonable steps to ensure that it is kept confidential.
Staff should be trained in relation to their obligations in respect of client confidentiality. The duty applies to each member of staff and continues after termination of employment.