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