Types Legal Professional Privilege

Solicitor-client privilege in the United States has its origins in English common law and is one of the oldest privileges in the common law and the American legal system. The ability to communicate openly without fear that others will force one of the parties involved – a lawyer or a client – to disclose the communication is at the heart of solicitor-client privilege. Privilege recognizes that sound legal advice or advocacy serves public purposes and that such advice or pleadings depend on the client fully informing the lawyer. Solicitor-client privilege is generally absolute and applies in both procedural and extrajudicial contexts. It may be invoked in all proceedings in which testimony may be compelled, including civil, criminal, administrative, regulatory and disciplinary proceedings. The legal privilege not to incriminate oneself is deeply rooted in criminal law and protected by the Fifth Amendment of the United States Constitution. It prohibits the government from forcing an accused to make prejudicial or incriminating statements against himself. The privilege is absolute and can only be revoked by the accused, who does not have to testify at his trial. Privilege may also be invoked in civil cases, but only if the witness` testimony can effectively pursue it. The main types of legal privileges are solicitor-client, clergy-communicator, matrimonial trust, therapist-patient, and the privilege not to incriminate oneself. These privileges are available in the United States and other common law countries. With the exception of the privilege not to contribute to one`s own incrimination, privileged statements are those made in the context of a special relationship of trust that the law protects against disclosure.

Solicitor-client privilege and work product doctrine protection is available for eligible communications to all U.S. licensed attorneys. The Evidence Act 1995 (Cth) and identical provisions of the Evidence Act 1995 in New South Wales and Tasmania now govern cases where privilege prevents the presentation of evidence in the course of court proceedings (as defined by proceedings bound by the Evidence Acts). New South Wales court decisions expand the definitions of the Evidence Act to include the discovery and inspection of documents. The right has been renamed by law to reflect the fact that it is a customer`s right. It is now the client`s legal privilege (as opposed to solicitor-client privilege). The courts view privilege as a «general substantive principle that plays an important role in the effective and efficient administration of justice by the courts»[5] and not as a mere rule of evidence. As such, it extends to all forms of mandatory disclosure, including search warrants. [6] [7] While Parliament may limit privilege, «the law should not pave the way for the legislature to limit privilege.» [8] All U.S.

jurisdictions recognize the legal privilege of confessions or confidential communications to a member of the clergy. As long as the statements of the author of the communication are to be private and made for the purpose of spiritual direction, they are protected. The privilege belongs not only to the communicant, but can also be claimed by the member of the clergy. Even statements made in a group discussion can be protected if they were made by a cleric and the statements were used to receive spiritual guidance. If an internal investigation or review of an incident, case or allegation is required, ask lawyers to commission and report for the overriding purpose of anticipated litigation and on the basis that legal advice is required, providing details of the anticipated litigation. The report should focus on the causes of the incident and the possible exposures resulting from it, and then consider as subsidiary issues all other issues such as improvements for the future. In R. v. McClure [2001] 1 S.C.R. In Case 445, the Court held that solicitor-client privilege was a principle of fundamental justice and indicated that it could be protected under section 7 of the Charter. Solicitor-client privilege was originally a common law principle of evidence, similar to hearsay, but has since been recognized as a constitutionally protected substantive rule.

This recognition began with R. v. Solosky (1979), where Dickson J., retracing his story, considered it to be a «fundamental civil and legal right» that guaranteed clients a right to privacy in their communications with their lawyers, even outside a courtroom. [9] The existence and extent of solicitor-client privilege depends on the legislation governing the communications in question. A U.S. court will likely use a «tactile base» test to determine whether U.S. or foreign law is applicable. In doing so, the court applies the law of the country with the most compelling or greater interest in whether the disclosure should be kept confidential.