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Search of Lawyer's

Office
Legal professional privilege
protects searches of lawyer's
office as well - searches must
be done with lawful authority
and constitutionally
Practice in the UK where certain documents are
in dispute as to their privileged
status - during a search - they
are put in bag and sealed and
submitted to independent counsel
to resolve status if privileged - they are returned
forthwith

Legal Advice Privilege


Three Rivers District v Bank
of England
[Legal advice extended to
"presentational advice" as to how
best to present before
enquiry - what to
prudently and sensibly done
in relevant legal context]

Jamacan Bar Association,


Ernest Smith & Co v
AG & DPP
[where searches of lawyer's
offices and removal of files
in Jamaica pursuant to
s. 23 (1) of mutual assistance
(Criminal Matters) Act were
held unlawful since they
neither lawyers nor staff were
suspected of commtting any
crime; breach of
constitution;
LPP was enshrined under
constitution and common law;
warrants issued were illegal
and void and no effect;
if Act didnt protect legal
privilege it would be contrary
to constitution hence
construed as protecting
legal privilege]

Financial Crimes
Money laundering ordinances
provide a number of investigative
tools to law enforcement
incl. requiring attorneys
to disclose confidential
information about clients may include court orders
production orders, monitoring
orders, customer information orders
and search orders

Lavalee v AG of Canada
[Supreme court of Canada
laid down certain guidelines
to apply to ensure
protection of privilege
material where
sezied from solicitor's offices]

Proceeds of Crime Act

Some jurisdictions have


whistle blower legislations
Non compliance can
result in criminal liability
for attorney
Confidentiality not to be
raised as a bar to to avoid
compliance - professional
exempted from liability
for any breach of duty of
confidence that would have
otherwise ensued as a result of
making the disclosure
Section 100
Proceeds of Crime Act

Documents / Communications subject to


legal professional privilege are
expressly excluded from scope
of investigative devices under
POCA
Section 108
Proceeds of Crime Act

Confidentiality
Financial
Crimes

Balabel v Air India


[Communications b/w solicitor
and client in course of conveyancing
transaction were privileged if broad
purpose was to obtain legal
advice]

R v Special Commisioners of Income


Tax
[For statute to overide - must be
expressly stated or by necessary
implication]

Legal Professional Privilege


Certain documentation and
communication between client
and attorney may not be
admissible in evidence
Rule of evidence that has
become a fundamental
condition of administration
of justice - resembling
constitutional principle

Parry-Jones v Law Society


[Contractual duty of confidence
will be overriden by duty to obey
general law - law society
required production of
accounting books in accordance
with trust and accounting rulesheld rules were valid and overrode
any privilege otherwise subsisting]

Types
Legal Advice Privilege

Introduction
Attorneys have a duty to
keep client information
secret and private
unless othewise authorized
by the client
Canon TV(t)
[duty to keep
secret or confidence
of client from third party
unless done with consent
of client after
full disclosure EXCEPT the necessary
secrets to collect fees or
defend self from allegation
of wrongful conduct]

This duty is implicit


in the contract of retainer
and the fiduciary relationship
between Attorney and Client

Remedies
Injunctive relief
(where breach
anticipated)
Damages

R v Derby
Magistrate's Court
[held that LPP is not an
interest to balance with other
public interest - alleged confession
by client to attorney was
immune from production

All communications made


in confidence between the
lawyer and client for the
purpose of obtaining or giving
legal advice and it may exists
independent of litigation

Litigation Privilege

Exception to Rule
B v Aukland District Law
- Fraud/Criminal
Purposes
Society
[PC held
that LPPwould
was a lead
Where
privilege
condition
tofundamental
illicit purpose
- legal
of the administration
professional
privilege
of justice and
couldnt bewill not
overriden by
law fraud
be allowed
tocommon
perpuate
or balanced against any
competing public interest
to compel production]

R v Cox & Railton


[where C & R obtained
advice from solicitor
on how to deceive the
court and so
communication to this
effect were not privileged]

Ex parte Francis
v Francis
[will not be
allowed once client has
intention of furthering
criminal purpose - even
if lawyer has no similar
intention]

This refers to communication


at the stage where litigation is
either in existence of or in
contemplation - dominant
purpose of obtaining legal
advice in connection with litigation
it extends to
communication between
attorney and client
as well as third parties