Legal Privilege

Author:Mr John O'Riordan
Profession:Dillon Eustace

1. Introduction

The concept of level privilege provides that certain

communications between a client and his solicitor are

privileged and immune from subsequent disclosure to a third

party. When legal privilege has been established neither the

client nor the solicitor can for any reason be compelled to

disclose details of this communication.

The rationale behind this principle is that "it assists

and enhances the administration of justice by facilitating the

representation of clients by legal advisers.... thereby

inducing the client to retain the solicitor and seek his advice

and encourage(s)... full and frank disclosure of the relevant

circumstances to the solicitor."1

Privilege over documents covers traditional paper

communications such as letters, notes and memos of

conversations and documents incorporating or reproducing legal

advice. In addition, it also includes items such as e-mails,

voicemails, computer databases and tape recordings.

Legal professional privilege will not exist however, in

situations where communications exist in furtherance of conduct

which is considered by the courts to be criminal, fraudulent or

contrary to the interests of justice.

2. Categories of Legal Privilege

Two categories of privilege exist:

A. Litigation Privilege

This arises only after litigation or other adversarial

proceedings have been commenced or are contemplated and it

protects all documents produced for the sole or dominant

purpose of the litigation in question. The extent of litigation

privilege includes all communication between:-

(i) a solicitor and his client,

(ii) a solicitor and his non professional agent, and

(iii) a solicitor and a third party.

For litigation privilege to exist there must be a reasonable

likelihood of litigation and a mere vague possibility that

proceedings may arise in the future will not be sufficient. The

communications must be made for the dominant purpose of

advancing the prosecution or defence of the matter or the

seeking or giving of legal advice in connection with it.

B. Legal Advice Privilege

Legal advice privilege protects communications between a

solicitor, acting in his professional capacity and his client,

provided that the communication is confidential and for the

purposes of seeking or giving legal advice.

The key difference between litigation privilege and legal

advice privilege is that correspondence with an independent

third party is not covered by legal advice privilege.

The area of legal advice privilege has been...

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