Conclusion
Confidentiality, supported by legal professional privilege, is the bedrock of the distinctive social role of lawyers and of legal ethics. Confidentiality and privilege are also valuable commodities; a package that only lawyers can deliver to clients.
Aspects of the doctrine of legal professional privilege are under increasing attack. It is understandable that the courts have been willing to abrogate litigation privilege in proceedings relating to children. They are keen to detect abuse before deciding issues concerning a child’s future. These incursions into privilege have been made on the ground that the proceedings are not adversarial.Lack of adversarial context is a dangerous ground on which to assert that there is no justification for maintaining legal privilege. Lord Woolf’s reform of civil litigation aimed at reducing the adversarial ethos. There is greater emphasis on disclosure, openness and co-operation. If the relevance of privilege is determined by the adversarial nature of proceedings, lawyers and clients would be in a constant state of uncertainty. Better therefore to proceed by way of clearly justified exceptions to the assumption of privilege.
The second justification for attacking privilege is the need to protect the public interest. Privilege may, in some cases, have to give way to the need to protect the welfare of a child or the prevention or detection of crimes. The obvious example is the speedy development of the money laundering legislation to cover all proceeds of crime. In effect, lawyers act as gatekeepers in order to assist in the detection of certain financial crime. This, however, apparently marks the limits of government’s desire to constrain confidentiality in the public interest for the present.
174 ibid, rC21.4.
Money laundering can be seen as a special case. Laundering is possible only if the Iaunderer engages the services of a lawyer under the cloak of secrecy provided by professional privilege. The privilege is therefore being abused to allow the client to benefit from the proceeds of his or her unlawful acts and not simply to prepare a defence. The extension of an obligation to break confidence in other situations of potential harm would be a radical departure for lawyers. It would also, arguably, be in contradiction of the obligation to uphold the rule of law.
Preserving confidence and privilege hinges on trust in professionals. Society allows confidence to reign in the public interest, but at the cost of other public goods. This is an area where particularly high professional and ethical standards are required from lawyers when advising clients. To put it at its lowest level, the commercial interests of the profession demand ethical behaviour or this valuable commodity, legal professional privilege, will be lost. This, then, is perhaps a prime example of why the legal profession must maintain high values and ethicality.