Solicitor Client Privilege - a Client's Right

The duty of confidentiality is a greater rule which also includes the concept of solicitor-client privilege. This duty covers all information which is received by the lawyer from the client and is gained by the lawyer in the course of carrying out duties on behalf of the client. It is a specific restriction that prohibits the lawyer from passing on information that may be known by third parties but is also held by the lawyer.

Solicitor-client privilege covers information which is a subset of information that would normally be considered confidential. It is limited to information which is received by the lawyer from the client and work-product which is created by the lawyer. These are matters that the lawyer would not know but for the client's choice to pass on the information to the lawyer or to engage the lawyer to work on his/her behalf.

One of the justifications for the concept of solicitor-client privilege is a desire to prevent the client from being conscripted into giving evidence against himself. The argument asserts that the client tells the lawyer certain items of information in order to obtain legal advice. If the lawyer is permitted to pass that information on then the client will, in effect, be testifying against himself.

Another justification is that the client will not be fully open in discussing legal matters with a lawyer unless confidentiality of the discussions is assured. The suggestion is that lawyers will not be able to give clients effective legal advice unless they are in possession of all relevant information, that clients will not give all relevant information to their lawyers unless they are assured the information is confidential, and that effective legal representation of clients is necessary to the operation of the justice system.

This argument assumes that clients are aware of the existence of solicitor client privilege. It also does not take into account the argument that the idea of privilege disadvantages those clients how have nothing to hide. Those clients who have engaged in wrongful conduct will not give all the information to their lawyers and therefore will receive less effective representation then those who have not engaged in wrongful conduct.

Solicitor-client privilege is an absolute concept with limited exceptions that have been established either by rules or through the Courts. These exceptions vary from jurisdiction to jurisdiction but typically relate to the safety of others, ongoing criminal conduct, the protection of children and some money-laundering statutes.

Any utility that is associated with the concept has been argued and established based upon the interests of clients or lawyers and not in the broader public interest or the interests of justice. There are legitimate arguments that are made by people like William H. Simon, The Practice of Justice (2001), who suggests that the broader societal interest would be better served with a more restrictive view of the concept of solicitor client privilege that required lawyers to balance the interests of society in the release of the information in their possession. Simon makes the argument that society would have been better served in the Kaye Scholer affair (dealing with the Savings & Loan crisis) with a greater release of information.

Privilege can only be waived by the client unless the matter falls within one of the statutory exceptions. Waiver, which has been found to vary from jurisdiction to jurisdiction, has been found in conversations carried out in circumstances where it could be expected third parties would overhear the discussion, in explicit communication to third parties and reckless communication of information. Privilege is the right of the client and if one has any questions about privilege or the communication of information with your lawyer you should raise those issues with your lawyer.

Information Only - Not Legal Advice - Speak to your Lawyer for advice regarding your situation.