If the non-client is considered a potential client under Togstad, solicitor-client privilege extends to that potential client. Whatever your legal problem, there is probably a lawyer who specializes specifically in dealing with your particular legal problem. Death of a client. The privilege may be violated with the death of a testator/client if there is a legal dispute between the heirs, legatees or other parties of the deceased who claim under the deceased client. The purpose of professional secrecy is to promote open and open communication between clients and their lawyers. In order to effectively represent a client, lawyers must have access to all relevant information about the representation. Solicitor-client privilege recognizes that a client is more likely to provide a lawyer with all relevant information – including information that could be embarrassing or unpleasant to discuss – if such communications cannot be further disclosed without the client`s consent. The concept of solicitor-client privilege is powerful. It remains in force even after the end of the mandate relationship. The protections afforded by the privilege of communication between a lawyer and his client are designed to promote what the U.S. Supreme Court has called „full and open” disclosure between clients and their lawyers.
Why is this important? If you are not honest and open with your lawyer about the facts surrounding your legal case, your lawyer will not be able to give you effective advice and representation. The privilege may be waived if the confidential communication is transmitted to third parties. While there are minor variations, the elements required to determine solicitor-client privilege are general: for example, suppose Smith speaks to Jones, his attorney, about a case involving a recent sale of shares under investigation by the SEC. Jones asks Smith if she received confidential, non-public information before selling her shares. and Smith nods silently. Although no words were exchanged, this communication between Smith and his lawyer is clearly protected by privilege. The subject of the communication was at the centre of the „Object” test. In the context of this criterion, the courts had to determine (a) whether the purpose of the communication at issue was to obtain and provide legal advice to the undertaking, (b) whether the employee`s hierarchical superior had insisted that the notification had been made by the employee and (c) whether the subject matter of the communication to the lawyer fell within the employee`s duties. Thus, according to this criterion, the subject matter of the notice to counsel included the employee`s obligations to the company, solicitor-client privilege would cover that disclosure, regardless of the rank of the employee who made the disclosure. See Harper & Row Publishers, Inc.
v. Decker, 423 F.2d 487 (7th Cir. 1970), combined with an equally divided court, 400 U.S. 348 (1971). ↩ Solicitor-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the privilege of testimony date back to the Roman Republic, and its use was already firmly rooted in English law during the reign of Elizabeth I in the 16th century. Based on the concept of honour, privilege has worked to prohibit any testimony by counsel against the client.1 Solicitor-client privilege is one of the oldest privileges for confidential communication. [2] The U.S. Supreme Court has stated that privilege by ensuring confidentiality encourages clients to make „full and open” disclosures to their lawyers, who are then better able to provide open advice and effective representation. [3] Solicitor-client privilege encourages clients to disclose to their lawyers all relevant legal information by protecting such disclosures from discovery in court. Inside information, which is strictly retained between the lawyer and the client, can remain private as long as a court does not force disclosure.
Privilege does not apply to communications between a lawyer and a client that are made for the purpose of promoting fraud or other criminal offences. The responsibility for determining which information should remain confidential rests with the customer. However, in its most common use, the lawyer claims privilege on behalf of the client to refuse to disclose to the court or any other requested party information about the client`s case. However, to be absolutely sure that what you disclose as a potential client falls under solicitor-client privilege, you must first discuss the question of privilege with a potential lawyer to ensure that solicitor-client privilege applies before giving them any information that you consider confidential.