Solicitor-client privilege
Encyclopedia
In common law
jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor
, barrister
or attorney
) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.
The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.
The principle originated as protection for individuals when accessing the knowledge and legal resources available to a lawyer and was said to stem from the "oath and honour" of the lawyer, a sort of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients would be discouraged from making full disclosure to their legal representatives. As Lord Brougham
put it in Greenough v Gaskell (1833):
, the rules on legal professional privilege are set out in common law. The Civil Procedure Rules 1998
('CPR') Rule 31.15 establishes a right to inspect documents in civil litigation, and provide that a party to whom a document has been disclosed (ie. mentioned or relied upon in litigation) has a right to inspect that document (if such inspection would be proportionate given the nature of the case) - except where the party making disclosure has the right to withhold such inspection.
One of these rights is legal professional privilege. It is a privilege that attaches to the client (not to the lawyer) in a client-lawyer relationship. It may only, therefore, be waived by the client. In the law of England and Wales, legal professional privilege is divided into two types: advice privilege, and litigation privilege, the former category being more absolutely and broadly-defined than the latter.
principle similar to hearsay
, but has since become recognized as a substantive rule that is constitutionally protected. This recognition began with R. v. Solosky (1979) where Justice Dickson
, in tracing its history, regarded it as a "fundamental civil and legal right" that guaranteed clients a right to privacy in their communications with their lawyers even outside a courtroom.
In R. v. McClure [2001] 1 S.C.R. 445, the Court found that solicitor-client privilege was a principle of fundamental justice, hinting that it may be protected under section 7 of the Charter
.
In its general sense, Canada has adopted John Wigmore's definition of solicitor client privilege:
Justice Lamer set out the test for solicitor-client privilege in Decoteaux v. Mierzwinski:
and keeps those communications confidential. This privilege
encourages open and honest communication between clients and attorneys. However, in the United States
, not all state courts treat attorney communications as privileged. For instance, Washington state law, and the federal courts when applying federal law, only protect client communications—an attorney's communication will only be protected as privileged to the extent it contains or reveals the client's communications. In contrast, California state law protects the attorney's confidential communications regardless of whether they contain, refer to or reveal the client's communications. In addition, the United States Supreme Court
has ruled that the privilege generally does not terminate upon the client's death
. See Swidler & Berlin v. United States
.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
, barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
or attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.
The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.
History
The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v Lovelace the full report of which states:Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the RollsMaster of the RollsThe Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the same process.
The principle originated as protection for individuals when accessing the knowledge and legal resources available to a lawyer and was said to stem from the "oath and honour" of the lawyer, a sort of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients would be discouraged from making full disclosure to their legal representatives. As Lord Brougham
Henry Brougham, 1st Baron Brougham and Vaux
Henry Peter Brougham, 1st Baron Brougham and Vaux was a British statesman who became Lord Chancellor of Great Britain.As a young lawyer in Scotland Brougham helped to found the Edinburgh Review in 1802 and contributed many articles to it. He went to London, and was called to the English bar in...
put it in Greenough v Gaskell (1833):
The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case".
England and Wales
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, the rules on legal professional privilege are set out in common law. The Civil Procedure Rules 1998
Civil Procedure Rules 1998
The Civil Procedure Rules are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
('CPR') Rule 31.15 establishes a right to inspect documents in civil litigation, and provide that a party to whom a document has been disclosed (ie. mentioned or relied upon in litigation) has a right to inspect that document (if such inspection would be proportionate given the nature of the case) - except where the party making disclosure has the right to withhold such inspection.
One of these rights is legal professional privilege. It is a privilege that attaches to the client (not to the lawyer) in a client-lawyer relationship. It may only, therefore, be waived by the client. In the law of England and Wales, legal professional privilege is divided into two types: advice privilege, and litigation privilege, the former category being more absolutely and broadly-defined than the latter.
Australia
The Evidence Act 1995 (Cth) and identical provisions in the Evidence Act 1995 of NSW and Tasmania now control when privilege prevents evidence is adduced during trial in any court (as defined by a proceeding bound by the laws of evidence). The rules of court in NSW extends the definitions in the Evidence Act to discovery and inspection of documents. The right, under legislation, has been renamed to reflect the fact that it is a right of the client. It is now client legal privilege (as opposed to legal professional privilege). The courts regard privilege as a "substantive general principle which plays an important role in the effective and efficient administration of justice by the courts",not a mere rule of evidence. As such, it extends to all forms of compulsory disclosure, including search warrants.. Furthermore, although the legislature may restrict privilege "the law [shouldn't] ease the way for the legislature to [restrict privilege]".In Canada
Solicitor-client privilege was initially a common law evidentiaryEvidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
principle similar to hearsay
Hearsay in English Law
The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005....
, but has since become recognized as a substantive rule that is constitutionally protected. This recognition began with R. v. Solosky (1979) where Justice Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
, in tracing its history, regarded it as a "fundamental civil and legal right" that guaranteed clients a right to privacy in their communications with their lawyers even outside a courtroom.
In R. v. McClure [2001] 1 S.C.R. 445, the Court found that solicitor-client privilege was a principle of fundamental justice, hinting that it may be protected under section 7 of the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
In its general sense, Canada has adopted John Wigmore's definition of solicitor client privilege:
- Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
Justice Lamer set out the test for solicitor-client privilege in Decoteaux v. Mierzwinski:
- 1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.
- 2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
- 3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
- 4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.
In the United States
Attorney-client privilege is a legal concept that protects communications between a client and his or her attorneyLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
and keeps those communications confidential. This privilege
Privilege
A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth...
encourages open and honest communication between clients and attorneys. However, in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, not all state courts treat attorney communications as privileged. For instance, Washington state law, and the federal courts when applying federal law, only protect client communications—an attorney's communication will only be protected as privileged to the extent it contains or reveals the client's communications. In contrast, California state law protects the attorney's confidential communications regardless of whether they contain, refer to or reveal the client's communications. In addition, the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has ruled that the privilege generally does not terminate upon the client's death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
. See Swidler & Berlin v. United States
Swidler & Berlin v. United States
Swidler & Berlin v. United States, 524 U.S. 399 , was a case in which the Supreme Court of the United States held that the death of an attorney's client does not terminate the attorney-client privilege with respect to records of confidential communications between the attorney and the client that...
.
Exceptions
Privilege cannot be relied upon where the communication is used to facilitate a crime.See also
- Attorney-client privilegeAttorney-client privilegeAttorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
- the American equivalent. - Privilege (evidence)Privilege (evidence)An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
- ConfidentialityConfidentialityConfidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
- Duty of confidentialityDuty of confidentialityIn common law jurisdictions, the duty of confidentiality obliges a solicitor to respect the confidentiality of his client's affairs. Information that a solicitor obtains about his clients' affairs may be confidential, and must not be used for the benefit of persons not authorised by the client...
- Admissible evidenceAdmissible evidenceAdmissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
- Accountant-client privilegeAccountant-client privilegeAccountant–client privilege is a confidentiality privilege, or more precisely, a group of privileges, available in American federal and state law. Accountant–client privileges may be classified in two categories: evidentiary privileges and non-evidentiary privileges.An evidentiary privilege is one...
- Physician-patient privilegePhysician-patient privilegePhysician–patient privilege is a legal concept, related to medical confidentiality, that protects communications between a patient and his or her doctor from being used against the patient in court. It is a part of the rules of evidence in many common law jurisdictions...
- Priest-penitent privilegePriest-penitent privilegeThe priest–penitent privilege, also known as the clergy privilege, clergy–penitent privilege, confessional privilege, and ecclesiastical privilege, is an application of the principle of privileged communication that protects the contents of communications between a member of the clergy and a...
- Shield lawShield lawA shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.-Definition:...
s - Reporters' PrivilegeReporters' PrivilegeReporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
- Spousal privilegeSpousal privilegeIn the law of the United States, the spousal privilege comprises two separate privileges, the marital confidences privilege and the spousal testimonial privilege....
- State Secrets PrivilegeState Secrets PrivilegeThe state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
- Public Interest ImmunityPublic Interest ImmunityPublic-interest immunity is a principle of English common law under which the English courts can grant a court order allowing one litigant to refrain from disclosing evidence to the other litigants where disclosure would be damaging to the public interest...