SOLICITOR-CLIENT PRIVILEGE AND LITIGATION PRIVILEGE IN CIVIL LITIGATION
AbstractThis paper examines the nature and scope of solicitor-client privilege and litigation privilege. Contrary to a recent article suggesting that there are no real differences between them, it is argued that the two privileges are distinct in terms of both their underlying purposes and the requisite conditions to invoke them. Most importantly, confidentiality is a requirement of solicitor-client privilege but not of litigation privilege. Moreover, extending solicitor-client privilege to communications from third parties (as proposed in the recent article) would be dangerous. It would stretch the scope of that privilege beyond its justification of necessity, and open the way for lawyers to develop and offer a "new product line" : namely, confidentiality. Whatever third party communications a client desires to keep secret could conveniently be clothed with privilege simply by having lawyers act as a conduit for such communications and asking them for their legal opinion thereon (as it now appears the tobacco industry has been doing for some time with research data). A strong policy reason for confining solicitor-client privilege to direct communications between lawyer and client is to limit the potential abuse of the privilege. Further, since the assertion of privilege inevitably impedes the truth finding process, the public interest is best served by confining the scope of solicitor-client privilege within narrow limits. For the same reason, the concept of "agents" must be accorded a narrow meaning in the context of solicitor-client privilege, so as not to render "agency" a back-door through which third party communications attract solicitor-client privilege .
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