The Gazette 1973

SOME RECENT OBSERVATIONS ON THE PRIVILEGE RELATIONSHIP BETWEEN CLIENT AND SOUCITOR By ERIC A. PLUNKETT, Secretary

documents were protected by legal professional privilege. Caulfield J. in the course of his judgment held that the rules of natural justice require that any documents in the possession or control of a solicitor which are both relevant and admissible to prove that a defendant was innocent of the alleged criminal charge are not privi- leged in a criminal trial and accordingly the solicitor should produce the relevant and admissible documents. No cases are referred to in the judgment. The Court held that the solicitor had acted perfectly properly throughout in taking the advice of the Law Society and raising the claim to privilege on the in- structions of the client. He was given an opportunity of representation by counsel who had made submissions to the Court on behalf of the claim to privilege. The privilege is one that is claimed by the client. The Judge stated that there is no previous authority on the point which is a novel one and that he was obliged to consider the matter on basic principles. He enunciated the prin- ciple as stated above and held that it must be re- stricted to the particular facts in a criminal trial and on what he conceived to be the rules of natural justice. He said that he could not conceive that the law would permit a solicitor or other person to screen from a jury information which if disclosed to the jury would perhaps enable a man either to establish his innocence or to resist an allegation by the Crown. The decision as reported has far reaching implications on the law relating to a client's right to the main- tenance of professional secrecy by his legal adviser and it remains to be seen how it will be interpreted by the Courts on the facts of particular cases. It could, con- ceivably, unless protected by proper safeguards, lead to many applications for the production of documents as well as the disclosure of professional information which have heretofore been regarded as privileged and frivolous applications by persons charged with criminal offences for the disclosure of privileged information by solicitors for other persons. folded. The flap on the third page is intended (when it is possible to get round to this stage) to affix a field plan thereto. See Rule 174(l)(b). Where such filed plan is so attached, then when a land certificate is applied for in respect of the folio in question it will be issued with a copy of the filed plan attached there- to. See in this regard Rule 155(1). Finally, you will note that folio type F.l relates to freehold property purchased under the Land Purchase Acts. Folio type F.2 relates to freehold property not so purchased; and folio type F.3 relates to freehold pro- perty purchased under the Labourers Acts. Yours faithfully, D. McAllister, Registrar The Secretary, Incorporated Law Society of Ireland. 177

The principles of professional privilege are fully set out in Cross on Evidence, 3rd edition, 1967, as follows. Communications passing between a client and his legal adviser together in some cases with communi- cations passing between these personel and third parties may not be given in evidence without the consent of the client if they were made either : (1) with reference to litigation that was actually taking place or was in contemplation of the client or, . (2) if they were made to enable the client to obtain, or the adviser to give, legal advice. This principle is many centuries old and was established in the interests of the administration of justice as well as of the client, so that any person seeking legal advice would be unimpeded by the consideration that his communications with his solicitor or documents arising in the course of such communications would after- wards be disclosed in public. It is part of the rule that the public should have unimpeded access to the Courts and to legal advice. One obvious exception to the principle is the case in which the client seeks legal advice for the purpose of committing a fraud or a crime. Any communications made or received or docu- ments arising in the course of such communications are not entitled to professional privilege and are on the same footing as any communications made between other parties. In the recent case of Regina v. Barton (1973 1 WLR 115) the defendant was a legal executive charged with fraudulent conversion and other offences alleged to have been committed in the course of his employment with a firm of solicitors. The defence served on a solici- tor, a partner in the firm, a subpoena to give evidence at the trial and to produce certain documents which had come into existence while the solicitor was acting as solicitor to the executors or administrators of the estates of deceased persons. The solicitor on the advice of the English Law Society took the point that the NUMBERING OF LAND REGISTRY FOLIOS Land Registry, Central Office, Dublin 14 June 1973 Dear Sir, On and from Monday 18 instant all new freehold folios and freehold folios revised on and after that date will be numbered consecutively beginning with No. IF et seq. I think it is desirable that this fact should be drawn to the attention of solicitors in your Journal. It should also be stressed that freehold folios revised after the above date will not be numbered with the same number which was allotted to the closed folios : for instance, Folio 200 could if revised, be numbered as Folio 2F. I enclose specimens of the proposed new folios. You will see that the folio is in three parts as usual; but is smaller than its predecessor and can be easily