Legal Professional Privilege: Law and Theory

In the Commonwealth, the principle of legal professional privilege has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view is that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals. This view is challenged here through an examination of the structure of and exceptions to the privilege. Auburn argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behaviour, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure and main derogations from the privilege, the author asserts that we should be more sceptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence.

This thoughtful analysis presents a new approach to the issue of legal professional privilege. It offers a thorough exploration of the principles underlying the privilege and takes a Commonwealth-wide approach, covering the law in England, Australia, Canada, New Zealand and South Africa, as well as drawing on relevant principles from European and United States law.