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5 November, 2007  
Professional privilege - the handmaiden of "paltering"

What is the most convincing rationale for “legal professional privilege”? It’s difficult to locate, and the Australian Law Reform Commission hasn’t helped. It’s somewhere between the needle in a haystack and the elephant in the room

imageThe crimes of conspiring to obstruct, defeat, prevent or pervert the course of justice can be traced back to a statute of 1305 and they have been part of English (and then Australian) law ever since.

As Justices Toohey and Gaudron said in 1998:

“That statute, the Ordinacio de Conspiratoribus, 1305, defined a conspiracy, inter alia, as an agreement, to combine falsely and maliciously to indict or acquit people.”

If one assumes that about half the people involved in civil and most of the defendants in criminal litigation are “in the wrong”, then their unwritten principal instruction to their lawyers will be to obstruct, defeat, prevent or pervert the course of justice.

Most lawyers will say they do not know which clients are in the wrong, but I wonder how many of them tell their clients, “I am super smart but not when it comes to working out what you’ve done”.

In addition to obstruction, there will need to be a lot of “fudging, twisting, shading, bending, stretching, slanting, exaggerating, distorting, whitewashing, and selective reporting”.

imageAccording to US Professors Frederick Schauer (pic) and Richard Zeckhauser:

“Such deceptive practices are occasionally designated by the uncommon word ‘paltering’, which the American Heritage Dictionary defines as acting insincerely or misleadingly. Although the intended effect of a ‘palter’ is the same as that of a lie, both the dictionary definition of ‘palter’ and everyday usage of related ideas make a ‘palter’ something troublesome, but still falling short of a full-bore lie.”

In order to safely palter and conspire to obstruct justice, lawyers need “legal professional privilege”, which they (and not legislators) invented.

Privilege renders a lawyer’s office more sacrosanct than a priest’s confessional.

Privilege divides into “litigation privilege” (which hides stuff which came into existence or occurred after litigation was in contemplation) and “advice privilege”, which was invented after litigation privilege, which conceals lawyer activities in non-litigation matters.

Explaining why legal professional privilege exists itself calls for a great deal of paltering, but fortunately lawyers are unrivalled experts.

Full bore lies are deftly avoided. By the time they have finished paltering, the privilege, having actually been created to benefit lawyers, is sold as something invented to benefit clients and/or the public interest.

It is just sort of accidental that the lawyers are the main beneficiaries, although that is denied too.

Fortunately, there are a lot of situations (not limited to lawyering activities) that call for the law to preserve confidentiality and privacy, so lawyers can piggyback on those situations to award themselves the biggest privileges of the lot and, having done that, start hacking back the privileges of everyone else.

The judges, given half-a-chance, will tend to say that everyone except lawyers can be ordered to breach confidentiality and privacy in the greater interest of truth.

US Professor Benjamin Barton in Do Judges Systematically Favor the Interests of the Legal Profession? says:

“When faced with a balancing test between the importance of a professional relationship and the truth-seeking function, courts repeatedly chose the truth-seeking function except for a very narrow group of relationships headlined by the attorney-client relationship. While this choice has been defended on jurisprudential grounds, it is better explained by the lawyer-judge hypothesis.”

imageLaw professor Geoffrey Hazard (pic) said in 1978:

“Attorney-client privilege, as far as it goes, is not only a principle of privacy, but also a device for cover-ups. That, of course, is what makes contemplation of it both interesting and troubling…

“The lawyer, though an ‘officer of the court’, is allowed to conceal wrongdoing by the client in the face of a specific demand for its disclosure by the very person suffering the wrong.”

That looks like obstructing justice to me.

imageAssociate Professor Sue McNicol (pic) of Monash University in her book Law of Privilege says:

“The effect of a successful claim to privilege is often that information which may be vital and relevant to the proper administration of justice is suppressed. Hence it is important to ascertain whether there are worthwhile rationales behind each head of privilege such that each privilege can be defended against the valid competing claims.”

Our High Court in Grant v Downs has said that the privilege …

“enhances the administration of justice by facilitating the representation of clients by legal advisers… This it does by keeping secret their communications, thereby inducing the client to retain (hire) the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure … to the solicitor.”

The public interest is allegedly served by encouraging clients to tell lawyers the truth, and then giving lawyers, despite being officers of the court, the power and the duty to hide it.

Where necessary, in order to placate the public, ad hoc exceptions have been created. If the client is proposing to commit a murder, a lawyer is not under a duty to hide that fact.

The Grant v Downs rationale would not be accepted by US professor Lloyd B. Snyder. In an article entitled Is Attorney-Client confidentiality necessary? (Georgetown Journal of Legal Ethics. Washington: Spring 2002) he says:

“Clients will distort facts and withhold information from their lawyers no matter how strict or loose the rules of confidentiality may be. The reasons clients do not tell all to their lawyers involve a number of factors, many of which have little to do with whether the information will find its way from the lawyer to third parties. These factors include: ego threat (threat to the client’s self-esteem), case threat (fear that information will be harmful to the case), role expectations (yielding to the direction the lawyer takes the discussion), etiquette barriers (avoiding embarrassment or discomfort), trauma (avoiding reliving bad experiences), and perceived irrelevancy.”

Since the privilege is all about lawyers helping clients frustrate justice, it is necessary that steps be taken to “reform” it whenever its true rationale becomes too apparent to the public.

On September 26 the Australian Law Reform Commission released a discussion paper, Client Legal Privilege and Federal Investigatory Bodies.

In the accompanying media release, the ALRC said:

“Our research and consultations reveal that privilege claims are sometimes used as a tactic to delay or frustrate investigations or legal proceedings.”

It doesn’t seem that any prosecutions for conspiring to obstruct, defeat, prevent or pervert the course of justice will follow.

Most interestingly, the ALRC explored the rationale for the privilege.

“A range of rationales has been offered for client legal privilege, all within an overarching justification of ‘public interest’, variously expressed.”

Since public interest is indefinable, that puts the rationale for privilege in pretty safe territory.

But wait. There’s more. A heck of a lot more – which is usually the way when paltering is involved.

“Interwoven in the ‘public interest’ arguments is the element of the private interest of clients in being assured of the confidentiality of their communications with legal advisers. The threads of rationale often intertwine and interlock; different aspects of rationale may be seen to support claims of client legal privilege in relation to the particular materials and communications under consideration at any given time.”

There is no mention of the interests of legal advisers.

About 24-pages later the ALRC said:

“The problem is not with the rationale of the doctrine, but in the arena of practice and procedure in general and arguably ‘mis’-practice with respect to individuals.”

In other words, it is abuse of the privilege that is the problem, not the privilege itself, or its rationale.

This reminds one of the US gun lobby: “Guns don’t kill people, people do.” Don’t hold your breath for: “Privilege doesn’t cause injustice. Lawyers do.”

What prevents the privilege from being abused? Lawyers will say that for a start the privilege does not apply to unlawful activities, and anyway it is the privilege of the client who could blow the whistle on the lawyer.

Not many clients are going to shoot themselves in the foot. And how can one find out what has gone on in a lawyer’s office in the first place?

In the US, the Milberg Weiss law firm dominated US shareholder class actions until 2004. Its lawsuits settled for millions and sometimes billions of dollars, earning the firm huge fees, and also what the New York Law Journal described on September 21 as the undying enmity of many in the corporate world.

However, in their offices, senior Milberg Weiss partners were illegally conspiring with various clients that the firm would secretly pay them a portion of the attorneys’ fees obtained in various class actions in which these clients served as lead plaintiffs.

The corporates would have loved to trip Milberg Weiss up, but could never find out. For how long did this go on?

Thirty years.


Reader Comments

Posted by: Anonymous
Date: November 21, 2007, 8:08 pm

Privilege and concealment are the main thing on sale by the big firms, which goes hand in hand with discovery, and other fat fee earner. Fortunately, this is not given to accountants who rat their clients out without hesistation. This gives us a competitive advantage. Clayton Utz leads the way in document destruction, document "washing" via privilege and excessive fees. Thanks though, I bough my first placee in Mosman at 28 in cash. 28 hours billed in 24.....wonderful....