This is the second half to part A i've uploaded. This half of the essay required us to discuss the importance of professional privilege. (the two parts were submitted as one document. However I will be selling both parts as a package deal).
The second portion of this assignment is an essay that hopes to discuss the importance of
professional privilege - specifically communication between its two sectors: lawyers and
clients, and lawyers and third parties. Herring starts off immediately by confirming1 “legal
professional privilege differs from the doctrine of confidentiality.” (Confidentiality being
explained further down).
Expanding on legal professional privilege, it covers all communication which has occurred
between a lawyer and their clients, finalising documents assembled for a means of litigation
(pursuing legal action) is not permitted to be disclosed to others unless consent has been
granted by the client. All clients have the fundamental human right which is the right to
protection of a private life. Furthermore, which is to be upheld by lawyers and deemed a
‘special obligation’ to keep information private.
Herring quotes Lord Scott who firmly believes2 “confidentiality to be legal ethics’ central
pillar.”. The law of confidentiality is also a major essential in the Solicitors Regulation
Authority as specifically clause 6.33 requires affairs of both past and present clients be kept
confidential unless disclosure is called for, consented by the client, or accepted by law.
Confidentiality is a necessity within a lawyer-client relationship. This links with professional
privilege as it is that privilege which ensures communication within this relationship is
protected. With this in motion, clients are able to express freely without fearing the accidental
occurrence of a third-party learning of any information. Clients learning to trust enables
lawyers to provide effective legal advice. If the assurance of confidentiality ceased to exist,
clients would understandably be far more hesitant to share information leading to harm upon
the case. Bolkiah v KPMG 19994 held the duty was to keep information confidential, not to
just take the steps to perform this.
In simpler terms, professional privilege is seen as a fundamental right, protecting
confidentiality between lawyers and clients, permitted to withhold evidence from either a
third party or by the courts. In tow follows litigation privilege, described by Herring5 “to
cover communication between a lawyer, their client and a third party in relation to the
preparation of litigation.”. The case of Three Rivers District Council v Governor and
Company of the Bank of England (No.6) 20046 bought upon the implementation of litigation
privilege but also privilege applies to documents that are included in a series of
communication looking for legal assistance. Another case is Nederlandse Reassurante Greop
Holding NV v Bacon & Woodrow 19957 which held the court would be unwilling to separate
legal and non-legal advice apart from another. Another case which bought light upon a
1
J Herring, Legal ethics (2nd edn, Oxford university press 2017) 6
2
J Herring, Legal ethics (2nd edn, Oxford university press 2017) 2
3
Sra, 'SRA Code of Conduct for Solicitors, RELs and RFLs' (Solicitors Regulation Authority, 30 May
2018) <https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/> accessed 13 April
2023, clause 6.3.
4
Bolkiah v KPMG [1999] 2 AC 222; [1999] 1 AII ER 517
5
J Herring, Legal ethics (2nd edn, Oxford university press 2017) 7
6
Three Rivers District Council v Governor and Company of the Bank of England (No.6) [2004] UKHL 48
[2005] 1 AC 610.
7
Nederlandse Reassurante Greop Holding NV v Bacon & Woodrow [1995] 1 AII ER 976
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