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:

    1. 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.

    2. 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...

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