Disciplinary Investigations and Legal Professional Privilege

The recent Privy Council decision in B and Others v Auckland District Law Society and Another [2003] UKPC 38 reaffirms the importance of the right to legal professional privilege as part of the public interest in the administration of justice, and sets out guidance on the limited circumstances in which the right can be overridden.

The principle of legal professional privilege prevents the disclosure of confidential communications between a client and his lawyer which were created for the dominant purpose of obtaining legal advice. The issue before the Privy Council was whether this fundamental right could be overridden in circumstances where another public interest i.e. the maintenance of the integrity of the legal profession, which may be said to require the production of all relevant information to those charged with the investigation and determination of complaints against legal practitioners, would support the disclosure of such documents.

Background

The appeal to the Privy Council from the Court of Appeal in New Zealand was brought by a law firm based in Auckland, New Zealand, and a number of its present and former partners. The partners were the subject of complaints to the respondent, the Auckland District Law Society (the Society), a statutory body with jurisdiction to investigate complaints of professional misconduct and bring disciplinary proceedings against its members.

The main issue was whether the Society was entitled under section 101(3)(d) of the Law Practitioners Act 1982 to require the firm to produce privileged documents for the purpose of an inquiry into allegations of professional misconduct. Section 101(3)(d) of the Act provides for the relevant District Law Society to require the production of any books, documents, papers, accounts or records in the possession or under the control of the person complained against or his employer which relate to the subject-matter of the inquiry. However, the Act was silent as to whether or not the power to require the production of documents extended to privileged material.

By a majority, the New Zealand Court of Appeal had held that the Act overrode any claim to legal professional privilege which may subsist in the documents. The Court accepted the high importance of the privilege, but considered that it was overridden by the even higher public interest in maintaining the integrity of the legal profession. However, the Privy Council took a different view.

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