Report No. 69

II. Rationale

68.10. Let us now examine in brief the rationale of legal professional privilege. A communication made to a legal adviser is certainly made in confidence, and in almost all countries some kind of protection or other has been afforded to such communications, even in regard to their disclosure in a court of law. But this does not mean that the privilege rests on the confidence itself, because there are certain requirements to be satisfied which we shall consider presently.

68.11. Though legal professional privilege has been said1 to be based on the necessity of securing full and unreserved intercourse between the adviser and the advised, this would not be a complete statement of the true position. As has been pointed out,2 this statement obviously presupposes some other basis, because the necessity of complete confidence may also exist when the advice is financial, and yet communications between, say, a banker and customer are not privileged against disclosure in a court of law. There is, of course, a statutory provision relating to the production of Bankers' books, but that confers no privilege as such. It relates to the method of proof.

It has therefore, been explained3 that the privilege for communications between solicitor and client rests 'not upon the confidence itself, but upon the necessity for carrying it out': and this necessity is not usually regarded as extending to the confidence reposed in members of other professions. The philosophy underlying the exemption from disclosure of privileged4 communications is well stated in Anderson v. Bank of British Columbia, (1876) LR 2 Ch D 644 (649), a case relating to the professional relationship of lawyer and client. The court speaking through Jessel M.R. said:

"The object and meaning of the rule is this: That as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his right or to defend himself from an improper claim, should have recourse to the assistance to 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 of his defence against the claim 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."

1. Tournter v. National Provincial and Union Bank of England, (1924) 1 KB 471 (479).

2. G.D. Nokes Professional Privilege, (1950) 66 LQR 88.

3. Russell v. Jackson, (1851) 9 Hare 387 (391) (Turner. v.).

4. Nokes Professional Privilege, (1950) 66 LQR 471, 475.

68.12. There is also the moral aspect, namely, that a professional legal adviser would hardly find it consistent with his profession to disclose what was communicated to him by the client. Wigmore comes to the heart of the matter when he states1:

"The consideration of treachery, so inviting an argument for Bentham's sarcasms, is after all not to be dismissed with a sneer. The sense of treachery in disclosing such confidence is impalpable and somewhat speculative: but it is there nevertheless, If the counsellors were compellable to disclose.'No man of a noble or elevated mind would stoop to such an employment.' Certainly the position of the legal adviser would be a difficult and disagreeable one; for it must be repugnant to any honourable man to feel that the confidences which his relation naturally invites are liable at the opponent's behest to be laid open through his own testimony. He cannot but feel the disagreeable inconsistency of being at the same time solicitor and the revealer of the secrets of the cause. This double-minded attitude would create an unhealthy moral state in the practitioner. Its concrete impropriety could not be over balanced by the recollection of its abstract desirability. If only for the sake of the peace of mind of the counsellor, it is better that the privilege should exist."

1. Wigmore, cited by Louisell etc. Evidence and Proof, (1972), p. 169.

68.13. As Judge Wyzanski has observed, "It is in the public interest that the lawyer should regard himself as more than a predictor of legal consequences. His duty to society as well as to his client involves many relevant social, economic, political and philosophical considerations."

68.14. In the U.S.A., the Attorney and client privilege is recognised as having a common law origin, and the basis of the privilege was thus stated in a case which arose in California:1

"The privilege is given on the grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defence of litigation compels a full disclosure of the facts by the client to his attorney. Unless he makes known to the lawyer all the facts, the advice which follows will be useless, if not misleading; the law suit will be conducted along improper lines, the trial will be full of surprises Unless the client knows that his lawyer cannot be compelled to reveal what is told him, the client will suppress what he thinks to be unfavourable facts."

1. City and Country of San Francisco v. Superior Court, (1951) 31 Cal 2d 227 (California).

68.15. The rule which places the seal of secrecy1 upon communications between client and attorney is founded upon the necessity, in the interest of administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.2

Other purposes for the privilege have been suggested, e.g. regard for human dignity and inviolate personality,3 deference to strong sentiment of loyalty attached to attorney-client relationship,4 and the duty of fidelity.5

In the early history of the privilege, its purpose seems to have been to protect the attorney's oath and honour.6

Thus, a variety of considerations serve as the justification for the privilege, and this seems to bear out Judge Wyzanski's comment, mentioned above.7

1. Note Attorney Client Privilege, (1965) 74 Yale LJ 539, 545, footnote 36.

2. Hunt v. Blackburn, (1888) 128 US 464 (470) decree made absolute, (1889) 131 US 403.

3. Gardner.-Re-evaluation of the Attorney-Client Privilege, (1963) 8 Villanova Law Review 279, 308, 316, 511, 519, cited in the note Attorney Client Privilege, (1965) 74 Yale 14 539, 545.

4. Ma Cormick Law of Evidence, (1954), p. 182, cited in the Note Attorney-Client Privilege, (1965) 74 Yale Li 539, 545.

5. Raclin The Privilege of Confidential Communication between Lawyers and Client, (1928) 16 Calif L Rev 487, 492, 497.

6. Wigmore Vol. 8, Article 2290, cited in Note Attorney Client Privilege, (1965) 74 Yale 14 539, 545, footnote 36.

7. judge Wyzanski, quoted supra.

68.16. To sum up the points mentioned above, the privilege is founded on the impossibility of conducting legal business without professional assistance, and on the necessity, in order to render that assistance effectual, of securing the fullest and most unreserved communication between the client and his legal adviser. Further, a compulsory disclosure of confidential communications is so opposed to the popular conscience that it would lead to frequent falsehoods as to what had really taken place. It is quite immaterial whether the communications relate to any litigation commenced or anticipated; it is sufficient if they pass as professional communications in a professional capacity; if the rule were so limited, no one could safely adopt such precautions as might eventually render any proceedings successful or all proceedings superfluous.1

1. (a) Grenough v. Gaskell, 1 M&K 103;

(b) Lye11 v. Kennedy, 9 App Cas 85;

(c) Holton v. Corporation of Liverpool, 1 M&K 99;

(d) Goldey v. Richards, 19 Beav 404;

(e) Campbell (ex parte), 5 Ch App 705;

(f) Framji Bhicaji v. Mohansing Dhansing, 1893 ILR 18 Born 263;

(g) Southward Co. v. Quick, 3 QBD 317;

(h) Munchershaw Bezonji v. New Dhurumsey, etc. Co., 1880 ILR 4 Born 576 (West, J.).s

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