Why Legal Privilege must be protected

Common Law

Legal professional privilege (LPP) is the convention which, under common law, protects communications between a professional legal adviser and their client from disclosure without the express permission of the client. The basic principle is that it allows people to speak freely when dealing with their legal advisers, safe in the knowledge that the facts which they divulge will remain confidential, and thus able to speak with complete honesty. In simplistic terms it resembles the privilege accorded to religious confession but the danger, for clients and lawyers alike, is that the overarching principle of privilege comes with caveats and conditions, and that the nature of a relationship between client and adviser has to be carefully managed in order to ensure that LPP is maintained.

LPP has been a principle of common law since the 1577 case of Berd v Lovelace, and was upheld in the Greenhough v Gasket case of 1833, when Lord Brougham stated that ‘if privilege did not exist at all, everyone would be thrown upon his own legal resources, deprived of professional assistance. A man would not venture to consider any skilful person or would only dare tell half his case’.

The erosion of LPP would also have the perverse consequence of enabling lawyers to effectively hold disgruntled clients to ransom, by threatening the release of confidential documents in the event of a dispute with the client.

The two types of privilege which fall under the auspices of LPP are legal advice privilege and litigation privilege.  Legal advice privilege covers communications between a client and lawyer which are confidential and are strictly intended for the purpose of giving and receiving legal advice, whilst litigation privilege is intended to allow clients to prepare for litigation without fearing that the documents thus produced will, at a later stage, have to be disclosed. In both cases the limits of and exceptions to privilege have to be borne in mind if confidentiality is to be maintained, with particular care being taken to establish who is the ‘client’, what represents ‘legal advice’ and, in the case of litigation privilege, the state of affairs which actually constitutes ‘preparing for litigation’.

When an individual retains the services of a legal expert – whether that’s a solicitor, barrister or trainee solicitor – then their status as the client is fairly clear. When a larger organisation seeks legal advice, however, the identity of the client needs to be firmly established, as it would be a mistake to assume that any and all communications between members of staff and the legal team are covered by privilege.

The definition of ‘preparing for litigation is fairly clear; it is not enough for an individual or organisation to fear that litigation may be waiting somewhere over the horizon in the light, for example, of litigation mounted against similar parties. Unless tangible indicators of litigation, such as letters before action, have been received, a client will not be able to claim litigation privilege.

The degree to which LPP is a vital component of the rule of law within a free and democratic society can perhaps best be expressed by examining two contrasting factors; the lengths to which legal practitioners have sometimes gone in order to uphold the principle, often in the face of public opprobrium, and the degree to which that principle is in danger of being eroded by the piecemeal and rushed implementation of state surveillance legislation.

The first of these is clearly illustrated by brief examination of a case which is famous within legal circles and which was something of a wider cause celebre in the early 1970’s. Although the case in question took place in the United States of America (upstate New York to be precise), the overriding principle of privilege covering legal communications is and was the same in UK and US jurisdictions.

The case in question involves Robert Garrow, who was charged with the murder of Philip Domblewski, an 18-year-old college student. Whilst briefing his lawyers, Frank Armani and Francis Belge, Garrow not only admitted to having killed Domblewski, but also to having killed another man and to the abduction, rape and murder of two women. He also told his lawyers where he had hidden the bodies of his two female victims, information which they confirmed by finding and photographing the remains in question. The unpleasant details of the case are an intrinsic part of understanding the strength of the principle governing what the lawyers did next; nothing. They told nobody what their client had divulged to them, even after the female bodies were discovered accidentally, and despite being begged by the father of one of the then missing women to tell him anything they knew. During the course of his trial, Garrow confessed the full extent of his crimes, at which point Armani and Belge admitted to having been aware of the murders and of the locations of the bodies.

Garrow was eventually sentenced to 25 years to life and was subsequently shot and killed whilst attempting to escape. Perhaps the most useful purpose served by what was clearly a life both harmful and sordid was that of providing an example of the fact that it is the absolute principle of privilege which has to govern its practice, rather than the details of a particular case. This holds despite the unpleasant nature of the individual concerned and their activities, and any distress caused to third parties.

Whilst the legal profession in general applauded the actions of the lawyers, the wider community was less approving, to the degree that both men suffered hate mail and death threats and had to relocate; Belge eventually gave up practicing law altogether and Armani saw his practice decline to the extent of taking many years to re-establish.

Public opinion may find this level of confidentiality hard to accept, but the simple truth is that the principle has to be extended this far in order for it to work. If we accept that people have a right to legal representation, and that a legal representative has a duty to perform to the very best of their abilities, then we have to accept that clients can tell their legal representative anything – and that genuinely does mean anything – without fearing that it will be disclosed, whether publicly or simply to the other party or parties in a case.

The lengths to which those in the legal profession are willing to go in order to protect the principle of LPP can sometimes seem to be in fairly stark contrast to the attitude taken by legislators, particularly in terms of laws governing the use of surveillance in cases in which national security is deemed to be at potential risk. The irony of this situation is that those clients most clearly in need of LPP are those involved in some form of litigation with an agency of the State, and thus facing wide ranging powers of covert surveillance. The principal legislation empowering such surveillance is the Regulation of Investigatory Powers Act 2000 (RIPA), supplemented by the Data Retention and Investigatory Powers Act 2014(DRIPA).  It would be a mistake for legal practitioners to presume that the principle of privilege is so firmly cemented within the system that it is automatically included within such legislation. Indeed, in 2009 the House of Lords, in In re McE [2009] 1 AC 908, held a majority view that RIPA allows for the covert surveillance of meetings between a client and their lawyers at a police station, despite the fact that the right to a private consultation is protected by Section 58 of the Police and Criminal Evidence Act (PACE). In dissenting from this aspect of the finding, Lord Phillips of Worth Maltravers stated that the RIPA Code of Practice as it then stood would lead to clients feeling unable to give full instructions to their lawyers, the very principle upon which LPP is founded, and at the very moment – at a police station, following arrest – at which candour and openness between client and lawyer is surely most vital.

The unease felt by many in the legal profession over the ‘creep’ of surveillance powers seems to be based not so much on a fear that the government is intentionally launching an attack upon the principle of LPP, but rather that the rushed and somewhat knee jerk nature of much of the legislation – utilising ‘national security’ as a catch-all justification – is in danger of leaving a variety of loopholes via which LPP will be eroded. This should come as little surprise when considering that DRIPA – a far reaching and wide ranging Act – was rushed through Parliament as emergency legislation in just four days, with only a single day’s scrutiny.

The fact that, during the course of 2015, there were three official reports[1] on the use and regulation of investigatory powers, and that each of these reports contained references to the need to protect LPP from the reach of surveillance – by statute if need be – is indicative of how serious the danger is becoming.

The danger was perhaps best expressed by Alistair MacDonald QC, Chairman of the Bar, speaking with reference to DRIPA in July 2015:

“Legal professional privilege is one of the most important safeguards protecting the fairness of a trial. It is a doctrine that has existed as a constitutional principle for centuries.

If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers. This has the potential result that defence teams will not even know about perfectly proper defences open to a defendant and will therefore not be able to advance them at trial.”

The danger has continued beyond DRIPA, with a lack of protections for LPP currently seen in the Investigatory Powers Bill. The government does appear to have realised that the steady erosion of a cornerstone of our legal system cannot continue, however, and is taking under advice guidance from the Law Society and Bar Council in further readings of the Bill. This should, hopefully, protect the legal profession and the justice system from state encroachment, at least for the moment. We must hope that any others that seek to undermine LPP also see that it must remain, for the good of all.

 

Written by:

Steve Cochrane
Steve Cochrane

 


[1] The reports in question were the March 2015 report of the Intelligence and Security Committee of Parliament, the June 2015 Report of the Investigatory Powers review by David Anderson QC, and the July 2015 Royal United Services Institute report