Legal professional privilege: Sword or shield?

Legal professional privilege is a venerable principle. With antecedents in 16th century Elizabethan England, the concept — that there can be no compelled disclosure of communications between a client and their lawyer — remains a fundamental tenet of common law legal systems the world over. Nor is the principle unique to the Anglosphere: although the exact nature and tenor of the rule varies widely, almost every jurisdiction globally recognises some form of confidentiality in lawyer-client communication.

Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much. -Vice-Chancellor Knight Bruce

…Which makes it somewhat surprising that the principle is under attack. Despite its august lineage, influential international institutions including the World Bank and United Nations Office on Drugs and Crime (UNODC) have recently suggested that privilege is facilitating corruption and illicit asset flows. Prosecutors are increasingly asserting that professional secrecy is being misused, while advocacy group Global Witness secretly filmed eminent American lawyers offering advice on how to move suspicious funds for a (fake) prospective client. In the courts, attempts have been made to narrow the application of privilege — with mixed effect.

In a 2005 article, Stephen Argument asked ‘is legal professional privilege an endangered principle?’ It seems his concerns were prescient. Proponents of privilege watch on with growing concern. Courts in this country and elsewhere have consistently hailed privilege’s significance. The comments of Gummow J are representative: privilege is ‘not a mere rule of evidence but a substantive and fundamental common law doctrine, a rule of law, the best explanation of which is that it affords a practical guarantee of fundamental rights’. Others believe privilege’s importance is overstated. In the same year but in a different case, Gummow’s colleague Toohey J remarked: ‘Important, indeed entrenched as legal professional privilege is, it exists to serve a purpose, that is to promote the public interest by assisting and enhancing the administration of justice. It is not an end in itself.’

Mason J had earlier observed: ‘[I]t is impossible to assess how significantly the privilege advances the policy which it is supposed to serve. The strength of the public interest is open to question.’ All of which makes a case shortly to come before the High Court of Australia, Glencore International AG v Federal Commissioner of Taxation, all the more interesting. In 2014, mining giant Glencore sought advice from Appleby, a law firm now notorious for its offshore restructuring practice. In 2017, documents relating to that advice became publicly available following the Paradise Papers leak. Those documents subsequently came to the attention of the Australian Taxation Office.

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Written by John Wilson and Kieran Pender. First published in Ethos.