Duhaime's Law Dictionary


Legal Professional Privilege Definition:

A shield against disclosure of communications between a solicitor and his/her client.

Related Terms: Client-Solicitor Privilege, Privilege, Litigation Privilege

Aka, client-solicitor privilege (Canada) or the attorney-client privilege (USA).

In Nias, an 1833 case, Justice Cottenham wrote:

"The true principle on which this case proceeds is that parties are at liberty to communicate with their professional advisers with respect to matters which become the subject of litigation, without restriction and without the liability of being afterwards called upon to produce or discover what they shall so have communicated."

In Anderson v Bank of British Columbia, Justice Jessell of the English Court of Appeal, Chancery Division wrote:

"[T]he object and meaning of the (legal profession privilege) rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claims of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule."

In the 4th Edition (Reissue, 2001) of Halsbury's Laws of England, the authors, at Volume 37 (Practice and Procedure) write:

"[C]ommunications made to and from a legal adviser for the purposes of obtaining legal advice and assistance are protected disclosure in the course of legal proceedings, both during the preliminary stages and at the trial....

"Any other communications as are reasonably necessary in order that the legal advice may be safely and sufficiently obtained are also protected...."

In one 1898 case, the following phrase can be coined from the reasons of Justice Lindley:

"Once privileged always privileged (unless) waived."1

The legal professional privilege is not absolute. In addition to the power to waive it, as that vests in the client, the privilege may also cede to the requirement in some jurisdictions that solicitors report certain crimes brought to their attention during the course of client-solicitor consultations such as, but not necessarily limited to, the proposed harm to a child or even to any another person, or facts as they relate to terrorism or money-laundering. Circumstances may also lend themselves to the implicit waiver of the privilege if, for example, the client uses what would have been privileged communication, in his body of evidence, or if the client intentionally discloses that communication to the other side of a law suit.

REFERENCES:

  • Anderson v Bank of British Columbia, (1876) 2 Ch. D. 644
  • Bolton v Liverpool, 1 My. & K. 88; also at 39 ER 614 (1833)
  • Calcraft v Guest, [1898] 2 QB 759 at page 761 (note 1).
  • Duhaime, Lloyd, Legal Definition of Privilege
  • Minet v Morgan, (1872-73) 8 Ch. 361
  • Nias v Northern and Eastern Railway Company, 3 My. & Cr. 355; also at 39 ER 614

Categories & Topics:


Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!