Professional Privilege - The Global Perspective

Confidentiality is an ethical principle associated with numerous professions such as law, medicine within which it is forbidden to disclose any information to persons except to authorize. Legal Professional Privilege is far narrower in scope than confidentiality.  It is in one sense a subset of confidentiality, since only communications that are confidential can be privileged.  The legal professional privilege is rule of law by which confidentiality of communications between a lawyer and a client is protected.  The effect of privilege is to allow a party litigating to withhold a document which is otherwise discoverable.  By contrast, mere confidentiality is no bar to discovery.

I being an attorney can very well appreciate how every legal professional is obliged to keep anything pertaining to the client confidential. The duty of confidentiality is much broader than the attorney-client evidentiary privilege, which only covers communications between the attorney and the client. Law recognizes many such communications as privileged communications and in case of breach, repercussions are also stated. Communication between a doctor and patient, communication between a lawyer and client, communication between a Clergy and a communicant in a Church, communication between husband and wife, all are treated as privileged communications and must be kept confidential.

Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, attorneys will be able to carry out their duty to provide clients with fanatical representation. Otherwise, the opposing side may be able to surprise the attorney in court with something which he did not know about his client, which makes both attorney and client look stupid and sometime even cause loosing the case in hand.

In some jurisdictions the attorney must try to convince the client to confirm his or her conduct to the boundaries of the law before disclosing any otherwise confidential information. In India, professional communications between attorneys and clients are protected as ‘privileged communications’ under the Indian Evidence Act, 1972, Section 126 and Section 129. These sections prevent a legal adviser from disclosing professional communication. As a critic of these sections, I can add that Indian law is silent on some aspects such as patent agents; trademark agents are not included in the ambit of these sections as they are not regarded as variety of lawyer and are out of common law privilege.

In England, the main category of privilege afforded to a communication is legal professional privilege. 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 has a right to inspect that document except where the party making disclosure has the right to withhold such inspection.

There are two forms of legal professional privilege, which apply to differing groups of people:

Legal Advice Privilege: Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.

Litigation Privilege: Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.

The attorney-client privilege is one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that by assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation. The attorney client privilege is subdivided into two parts:-

Attorney-client communication privilege

Attorney work product

Attorney-client communication privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential. Federal Rules of Civil Procedure Rule 26(b) (3) (A) covers Attorney Client Communication.

In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable, and may be shielded from discovery by a Protective Order, unless the party seeking discovery can demonstrate that the sought facts can only be obtained through discovery and that those facts are indispensable for impeaching or substantiating a claim. That is, the party unable to obtain the information has no other means of obtaining the information without undue hardship.

There are a number of exceptions to the privilege in most jurisdictions, chief among them are:- the communication was made in the presence of individuals who were neither attorney nor client, or disclosed to such individuals, the communication was made for the purpose of committing a crime or tort, the client has waived the privilege by, for example, publicly disclosing the communication.

A corollary to the attorney-client privilege is the joint defense privilege, which is also called the common interest rule. The common interest rule serves to protect the confidentiality of communications passing from one party to another party where a joint defense or strategy has been decided upon and undertaken by the parties and their respective counsel. An attorney speaking publicly in regard to a client's personal business and private affairs can be reprimanded by the bar and/or disbarred, regardless of the fact that he or she may be no longer representing the client. Airing of a client's or past client's dirty laundry is viewed as a breach of fiduciary responsibilities.

As a concluding remark I can say that professional privilege is the basis for which confidential communication must be protected when legal counsel is sought.