Legal Professional Privilege: Law and Theory

In the Commonwealth, the principle of legal professional privilege (the privilege) has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals is challenged here through an examination of the theoretical structure of and common law derogations from the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behavior, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure, and main derogations from the privilege, the author asserts that we should be more skeptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence. The author takes a Commonwealth-wide approach to the law as well as drawing on relevant principles from European and United States Law.