The Privilege Checklist

Below we discuss the ambit of the protection afforded to your communications with your legal advisers and third parties. We explain the difference between privilege and confidentiality, and conclude with a checklist of the issues which should be considered whenever sensitive documents are created.

Introduction

In order to obtain accurate legal advice one must be free to communicate openly and honestly with one's attorneys. This requires not only the assurance that communications with one's attorneys will be treated in confidence but also that a court of law will not order the disclosure of the contents of such communications, no matter how relevant they may be. It goes without saying that one will have the same sensitivity about communications with third parties in anticipation of, or arising from, legal advice.

Protection of such communications has become particularly important in this age of SMS's and e-mails, the increasing use of voice recognition word processing and the recording of telephone discussions. Where in former years writing a letter required time, planning and effort, it is today possible to document our thoughts almost as and when we think. Furthermore, documentation electronically stored does not decompose and attempts to tamper with or destroy such information are often easily exposed.

Due to the expanding role that attorneys play in their client's businesses today and the general proliferation of documentation, it is necessary for businessmen to understand the extent to which such documented communications are protected, or "privileged", as it is referred to in law. As will be shown, the law does not afford blanket protection to all communications between attorneys and clients, and affords restricted protection only to communications with third parties.

What is privilege?

Privilege should not be confused with confidentiality undertakings. Privilege arises as a matter of law, whereas a confidentiality undertaking is a contract. The mere agreement between parties that certain communications will be treated as confidential does not preclude a court from requiring the disclosure of documentation that is relevant to a matter forming the subject of litigation. Our law of evidence, which is largely derived from English Law, considers certain communications to be privileged. The privilege may be raised by a party in court proceedings to resist disclosure.

Legal professional privilege, is based on the general rule that...