14 Nov Solicitor-Client and Litigation Privilege: Let’s Have a Candid Conversation
By: Darren Kautz
Ever wondered to what extent the things you tell your lawyer are confidential? Often privilege is asserted in various ways on communications between the client and lawyer so that information remains confidential and does not prejudice the client later on.
Privilege is one of the most crucial areas of litigation in general, and personal injury law in particular. There are two prominent types of privilege that operate within the realm of personal injury law: solicitor-client privilege and litigation privilege. Litigation privilege concerns the process of litigation. To determine whether litigation privilege can be asserted, the courts consider whether the information came into existence for the dominant purpose of use in actual or anticipated litigation. This means that any communication between the client and the lawyer which occurs in tandem with anticipation of litigation can establish litigation privilege. Accordingly, this privilege can also be extended to third parties who are not parties to the litigation. In essence, this type of privilege is established when litigation is anticipated and applies to all communications or documents that concern that case.
Solicitor-client privilege on the other hand refers to the general communications between a client and a lawyer. There need not be anticipation of litigation as this type of privilege is presumed to exist when the client and lawyer enter into a representative agreement. However, solicitor-client privilege does not extend to third parties and is in place only to allow clients to have frank and accurate conversations with their lawyers.
While solicitor-client and litigation privilege are related, there are important distinctions that must be drawn between the two. Justice of Appeal RJ Sharp identifies three main areas in which solicitor-client and litigation privilege must be differentiated:
- Solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature.
- Solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself.
- The rationale for solicitor-client privilege is very different from that which underlies litigation privilege. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.
The last point made by JA Sharp is crucial in personal injury cases. There needs to be a forum that allows clients to confide in their lawyer so that the lawyers can represent and advocate for them accordingly.
Join Kautz Injury Law again next week as I, Darren Kautz, will discuss other areas of personal injury law.