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.
Categories of Legal Privilege
Two categories of privilege exist:
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.
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...
|Author:||Mr John O'Riordan|
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