Legal Professional Privilege Slides

Report
In-House Counsel Masterclass:
The CPD Regulatory Hour
MHC.ie
Welcome
Declan Black
Managing Partner
Mason Hayes & Curran
2
Introduction
• Guide to Good Professional Conduct for Solicitors
• Chapter 4 – Legal Professional Privilege & Confidentiality
• Flyer
• Q&A
• Conversation not over!
3
Legal Professional Privilege
Niall Michel
Partner
Mason Hayes & Curran
email: [email protected]
4
What does the Guide tell us?
• Describes LPP rule
• Solicitor’s duty of confidence wider than LPP
• “Fundamental feature” of administration of justice
• Remember to assert LPP, including in AML and Tax contexts
• LPP can be lost or waived
• Exceptions to LPP
5
Fundamental Feature of
Administration of Justice
• “… more than a mere rule of evidence…a fundamental
condition on which the administration of justice as a whole
rests.”
• Why?
• Rooted in balance of public interests
• Adversarial system
• Always a context
6
Confidentiality vs LPP
• Solicitor’s duty of confidence has wider coverage than LPP
• All privileged communications are confidential
• Not all confidential communications are privileged
• Context determines maintainability of DOC
7
What is covered by LPP?
• 2 limbs to LPP rule
• Legal advice privilege
• Litigation privilege
8
Elements of Legal Advice Privilege
• Confidential
• Communications
• Between client and professional legal adviser
• In course of professional legal relationship
• For purpose of seeking or giving legal advice
9
Elements of Litigation Privilege
• Confidential
• Communications
• Between
• client and lawyer
• lawyer and third party
• client and third party
• With dominant purpose of preparing for reasonably
apprehended or actual litigation
10
LPP can be Lost or Waived
• Loss
• Waiver – express or implied; partial or whole
• Avoiding implicit waiver
• Common interest
• Implicit waiver not lightly found, but can happen:
• Deploying contents in pleadings; affidavits/evidence
• Putting contents in issue
• Sending to adversary
• Inadvertent disclosure
11
Exceptions to LPP
• Where balance of public interests changes
• Communications
• In furtherance of crime, fraud or “moral turpitude”
• In furtherance of conduct injurious to interests of justice
• Where disclosure in best interests of a child in proceedings
• Where disclosure would establish innocence
• As between parties with common interest
• As between parties enjoying joint privilege
• If statute so provides
12
Where LPP does not Apply
• Communications intended to be repeated to adversary
• Actual communications with adversary in contemplation of
litigation
• Facts “patent to the senses” vs facts communicated
• Pre-existing, non-privileged, documents sent to lawyer
• [In-house counsel only]: to communications relevant to EUled competition investigations/proceedings
13
Duration of LPP
• ‘Once privileged, always privileged’?
• Legal advice privilege
• Litigation privilege
14
Thank you for your Attention!
15
The Solicitor’s Relationship to the Court
& other Matters
Emily Egan McGrath BL
16
Q&A
17

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