Exception of common interest. Where two parties are represented in the same legal case by the same lawyer, neither client privilege may invoke solicitor-client privilege against the other in subsequent litigation if the subsequent dispute concerned the subject matter of the previous joint representation. This principle arose from the protection of the individual in access to legal knowledge and resources available to a lawyer and is supposed to result from the lawyer`s “oath and honour”, a kind of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexity of the legal and judicial system without assistance. Without protection, however, the quality of advice would suffer, as clients would be deterred from giving full disclosure to their legal representatives. As Lord Brougham said in Greenough v Gaskell (1833), the communication must remain confidential for the privilege to apply. If the content of the solicitor-client communication is disclosed to persons outside the university – or to persons within the university who are not directly involved in the matter – the privilege may lapse. Your communications with Harvard lawyers should never be discussed with anyone outside Harvard, including family members or friends. Within the University, they should only be discussed with those responsible for the issue in question. If you continue with the scenario shown in Example 1, the next point is shown. For more information on solicitor-client privilege, see this article from Cornell Law Review, this article from Fordham Law Review, and this article from Pepperdine Law Review.
Since privilege is held by the client, not the lawyer, the client has the ultimate authority to invoke or waive it.24 If the client is a business, privilege is generally considered a matter of control of the business. In other words, management or the “control group,” including officers and directors, decides whether to assert or waive the privilege.25 In the event of a change in control of the corporation, ownership of the privilege passes to successors; it does not remain in the hands of the company`s previous management.26 An express contract is not required for the establishment of a solicitor-client relationship; The relationship may be implicit from the behaviour of the parties. However, the relationship cannot exist unilaterally in the mind of the potential client, unless there is a “reasonable presumption” that the relationship exists between lawyer and client. The implied relationship can be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the potential client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner. While this list of factors is illustrative, none of these factors, taken in isolation, will confirm the existence of a solicitor-client relationship.12 We begin our analysis of privilege with the obvious: before privilege exists, there must be a solicitor-client relationship. As basic as this concept may seem, many clients assume that the relationship exists and mistakenly rely on the protection of privilege, but privilege does not exist until the relationship is firmly established. As a general rule, solicitor-client privilege does not apply until the parties have agreed on the representation of the client. Although privilege has evolved, countless political justifications have played a role in its development.
Basically, privilege ensures “that a person who seeks advice or assistance from a lawyer should be completely free from fear that his secrets will be revealed.” 2 The underlying principle of the privilege is therefore to provide “sound legal advice [and] advocacy services”. 3 With security of privilege, the client can speak openly and openly with a lawyer, pass on all relevant information to the lawyer, and create a “privacy zone.” 4 In other words, protected by privilege, the client may be more willing to communicate in order to offer advice that might otherwise be removed. In theory, such openness and honesty will help the lawyer provide more accurate and well-reasoned professional advice, and the client can be assured that his or her statements to his or her lawyer will not be interpreted as an adverse admission or used against his or her interests.5 Indeed, fully informed legal counsel are better equipped to “discharge all their professional responsibilities, to discharge their duties of good faith and loyalty to the client and to contribute to the effective administration of justice. 6 Solicitor-client privilege is a fundamental element of the U.S. legal system.