Legal Professional Privilege

Overview

In the Commonwealth, the principle of legal professional privilege (the privilege) has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals is challenged here through an examination of the theoretical structure of and common law derogations from the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the ...
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Overview

In the Commonwealth, the principle of legal professional privilege (the privilege) has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals is challenged here through an examination of the theoretical structure of and common law derogations from the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behavior, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure, and main derogations from the privilege, the author asserts that we should be more skeptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence. The author takes a Commonwealth-wide approach to the law as well as drawing on relevant principles from European and United States Law.
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Product Details

  • ISBN-13: 9781841131016
  • Publisher: Hart Publishing UK
  • Publication date: 8/1/2000
  • Pages: 288
  • Product dimensions: 6.45 (w) x 9.50 (h) x 0.93 (d)

Table of Contents

Preface vii
Works Frequently Cited xv
Table of Cases xvii
Table of Legislation xxxv
1. Conceptual and Historical Introduction 1
Place of the Privilege 1
Dating of the Privilege's Origin 2
The Original Reason for the Privilege: Honour Theory? 3
Need for Historical Revision 7
Book Thesis: Balancing and Absoluteness 8
Part A Theoretical Foundations
2. Emerging Common Law Right 13
Introduction 13
Non-rights Instrumentalism and Utilitarianism 13
Rights 16
Context 17
Canada 19
Australia 20
South Africa 23
New Zealand 24
England 25
European Court of Justice 27
United States 28
Analysis of authority 29
"Mere Rule of Evidence" 31
Rationale and the Rules of Privilege 32
Conclusions 34
3. Privilege Under the European Convention on Human Rights 37
Introduction 37
Section I Article 6 38
Scope and the Principle of Effective Access 38
Effective Access and the Privilege 40
Access to Privileged Materials 43
Section II Article 8 47
The Protected Interest and the Problem of Instrumental Goals 47
Justified Interferences and Proportionality 50
Conclusion 55
4. Confidentiality 57
Introduction 57
Section I Theoretical Importance of Confidentiality 57
Confidentiality of Itself 57
Importance of Legal Communications 61
Place of Confidentiality in Privilege 64
Section II Practical Importance of Confidentiality; Theories of Practice 65
Speculative Nature of Confidentiality Benefits 65
Chilling Effect Theory 66
Critique of the Chilling Effect Theory: The Chicken Little View 67
Section III Practical Importance of Confidentiality; Empirical Evidence 69
Overview of the Empirical Studies 69
Awareness of Existence of Confidentiality 71
Absence of Confidentiality 72
Need and Competing Motives 75
Type and Source of Confidentiality 76
Conclusions 77
5. Disclosure 79
Introduction 79
Section I Theory; Goal of Truth in Litigation 79
Civil Litigation is Not Aimed at Physical or Scientific Truth 79
Truth as a Paramount Objective 81
Different Priorities of Criminal Litigation 83
Adversarial System as a Whole 83
Section II Practice; Value Placed on Disclosure and Compulsion 85
Non-judicial 86
Trial Disclosure and Rules of Admissibility 86
Criminal Pre-trial Disclosure 89
Civil Pre-trial Disclosure 90
Section III Assessing the Detriment to Truth 93
Opportunity Cost 93
Wrongful Inducement 94
Prosecutions Foregone 96
Conclusions 97
6. Structure of the Privilege--General Theory 99
Introduction 99
Section I Rationale and the Balancing Issue 100
Issue 100
Rights 101
Instrumentalism 104
Section II Basics of the Balancing Debate 107
Against Balancing 107
For Balancing 109
Section III Level of Abstraction 111
Same Level of Abstraction for Each Interest 111
Appropriate Level of Abstraction: Rejecting Fried 112
Appropriate Level of Abstraction: Influence of Rationale 114
Conclusions 114
7. Structure of the Privilege--Application 117
Introduction 117
Section I Current Approach and Explanation 118
Section II Consistency with Privilege Derogations 126
Crime-fraud 126
Criminal Exculpatory Evidence 127
Waiver 129
Child Welfare 130
Section III Consistency with Substantive Rules of Privilege 131
Definition of Client: Common Interest 131
Definition of Lawyer: Accountants and Multi-disciplinary Practices 133
Confidentiality and Eavesdropping 134
Section IV Rule Balancing as a Judicial Function 135
Some Arguments Against Judicial Intervention 135
The Myers Debate 138
Arguments for Judicial Intervention 142
Conclusions 145
Part B Practical Applications
8. Crime-fraud Exception 149
Introduction 149
Brief History 151
Section I The Two Rationales 153
Traditional Rationale 153
Alternative Rationale: Public Policy 155
Difference in Rationales and Overriding the Privilege 158
Section II Choosing Between the Two Rationales 159
First Principles Analysis and R. v. Cox and Railton 160
Consistency with Elements of Crime-fraud Rule 161
Consistency with Other Privilege Rules 166
Past--Present Distinction and Ongoing Conduct 168
Conclusions 171
9. Criminal Exculpatory Evidence 173
Introduction 173
Section I Principle of In Favorem innocentiae 173
Concept of Criminal Exculpatory Evidence 173
General Rule? 176
Public Interest Immunity and the Informer Rule 177
Hearsay and Confessions 179
American Due Process Clause 180
State of In Favorem Innocentiae Principle 181
Section II Place in the Privilege 182
Authority for Privilege Exception 182
Rejection of Exception and Balancing 188
Joint Trials 191
Conclusions 192
10. Loss of Privilege Based on Intent and Disclosure [Waiver] 195
Introduction 195
Section I Intent Based Loss of Privilege 196
Role of Intention 196
Actual Disclosure 199
Section II Disclosure Based Loss of Privilege 202
Deliberate Selective Disclosure 203
Deliberate Purposive Disclosure ("Limited Waiver") 204
Inadvertent Disclosure of Copies 207
Section III Meaning of Privilege Where it Exists Despite Disclosure 210
Conclusion 211
11. Fairness Based Loss of Privilege [Waiver] 213
Introduction 213
Partial Disclosure 214
Putting in Issue and Related Rules 217
Analysis of the Fairness Rationale 221
Effect on Absoluteness of the Privilege 223
The Effects of Waiver: Total or Partial Abrogation 225
Conclusion 229
12. Inadvertent Disclosure 231
Introduction 231
Section I The Unresolved Problem 232
Calcraft v. Guest and Ashburton v. Pape 232
Subsequent Debate 236
Abolition of Calcraft v. Guest 239
The Impossibility of Ashburton v. Pope 244
Filling the Gap Between Confidentiality and Privilege 247
Section II Principles Grounding Relief 250
Potential Remedies 250
Discretion 251
Knowledge of the Recipient 253
Timing: When is It Too Late? 255
Conclusion 258
13. Past and Future Directions 261
Index 263
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