LA FORMACIÓN DE MAESTROS COMO ASUNTO COLECTIVO

Client legal privilege as a rule of evidence came to the fore with the universal duty to testify and the imposition of compulsory process to secure the testimony of witnesses in an open court, before a jury charged with evaluating the evidence. The judicial search for truth could no longer be obstructed by voluntary pledges of secrecy. However the courts decided that communications with a legal adviser formed a special category because of the importance of obtaining legal advice. Client legal privilege developed to protect confidential communications between a client and legal adviser from compelled disclosure. A legal adviser could not be called upon to divulge the secrets of the client.

Berd v Lovelace52followed on the heels of the 1562 statute, and was the first reported case to decide that all competent persons could be compelled to testify, with the exception of the solicitor, who could not be compelled to testify on matters concerning the suit. The report is very short and is quoted in full:

Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed the Master of the Rolls, it is ordered that he said Thomas Hawtry shall not be compelled to be deposed, touching the same, and that he shall be in no danger of any contempt, touching the not executing of the said process.53

Dennis v Codrington54 applied the same privilege to counsel, ordering that he shall not be compelled by subpoena or otherwise to be examined upon any matter concerning the same, wherein he was of counsel. Wilson v Rastall55 confined the privilege to the trio of counsel, solicitor and attorney; furthermore as noted by Lord Sumption, the case established three key principles in the operation of the privilege.

In Wilson v Rastall (1792) 4 TR 753, it was established (i) that the privilege was a right of the client, not of the lawyer, (ii) that the lawyers was therefore precluded from giving evidence of privileged matters even if he was willing to, and (iii) that the privilege was not confined to the litigation in which disclosure was sought nor to litigation in which the client was a party, but extended to any litigation in which it was sought to compel the production of documents or the appearance of a witness.56

51 _{The Latin maxim ‘nemo tenetur se ipsum prodere/accusare’.} 52

(1577) Cary 62; 21 ER 33.

53 _{Ibid. Quoted in full in Holdsworth, above n 39, 47.} 54 _Ibid.

55 _{(1792) 4 Term Rep 753.} 56

R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1, [115] (23 January 2013).

Atterbury v Hawkins57dismissed a claim for privilege in the case of a scrivener stating ‘he is not a civil confessor as a lawyer is nor to be so treated, but rather a person suspected in law as apt to make unlawful concealments.’58 A claim for privilege needs more than trust and confidence; it also needed to be based on a lawyer acting in his professional capacity.59 That the claim to privilege should be restricted to legal professionals was questioned by Lord Brougham in Greenough v Gaskell.60 However, it should be noted that during this period the legal adviser was compared to professions not offering legal advice, but rather concerned with confidential personal or medical advice.

The foundation of this rule is not difficult to discover. It was not (as has sometimes been said) on account of any particular importance which the law attributed to the business of the legal professors, or of any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others and especially to medical advisers.61

Spark v Middleton62 spelt out the parameters of what questions counsel is required to answer:

…he should only reveal such things as he either knew before he was Counsel, or that came to his knowledge since by other persons ... and the Court only put the question. Whether he knew from his own knowledge63

The parameters of privilege were further confined in Preston v Carr64 wherein a plaintiff demanded production from the defendant of letters written to his solicitors; letters that set out the facts of the case with a view to their being presented to counsel for an opinion. The Court held that the letters had to be produced, although counsel’s opinion in response did not. The reasoning of the Court was that when a communication to an attorney can be proved by some means other than the attorney’s testimony, as for example in this case by pre-existing documents, the privilege does not apply.

2.6.1 The lawyer as the client’s alter ego

57 _{(1678) 2 Chan Cas 242.} 58

Ibid.

59 _{Trials of the Duchess of Kingston (1776) 20 How St Tr 355, 386-91 established that there was no} general privilege over confidential communications. A surgeon in that case was compelled to give evidence of matters communicated to him confidentially and professionally; and as a personal friend, Lord Barrington, was also compelled to give evidence in breach of confidence.

60 _{(1833) 1 My & K 88; 39 ER 618.} 61 _{Ibid 103.}

62 _{(1664) 1 Keb 505; 83 ER 1079.} 63

Ibid 1079 (emphasis added). These parameters later took a firmer form and continue to apply today. See also Bulstrod v Letchmere (1676) 22 ER 1019 ‘the defendant, being a Counsellor at law shall not be bound to answer concerning any writings which he hath seen, nor for any thing which he knoweth in the cause as Counsellor’

64

(1826) 1 Y & J 175; 148 ER 634.This is a troubling case, if viewed from our current understanding of the operation of privilege.

Annesley v Anglesea65 has been interpreted as a rationalisation of privilege rooted in the idea that the lawyer is the client’s alter-ego.66 The alter ego theory is not precisely propounded in the case but traces of it can be found, mixed with other rationales, in both the arguments and the judgement.67 The decision resulted in a refusal to apply the privilege, though the grounds are not entirely clear. However the alter-ego theory continues to find favour.68 Privilege under this theory, is a reflection of the unification of the legal personalities of the client and the lawyer; espousing the idea that the client’s legal position should not be prejudiced by the engagement of legal assistance. Lord Chief, Baron Bowes, based his final conclusion on the fact that the communication in question was not ‘necessary’ to securing the attorney’s assistance, however he did emphasise the role of the lawyer as the client’s trustee.

The policy of the law in protecting secrets disclosed by the client to his attorney [is] in favour of his client, and principally for his service and ... the attorney is loco of the client and therefore his trustee.69

The attorney stands in place of the client, who cannot be examined as witness against himself,70 thus evidence cannot be obtained from the client indirectly through the lawyer.

Ponit in loco suo attornatum, the attorney is as himself. And it is contrary to the rules of natural justice and equity that any man should betray himself. ... [The attorney] is in the place of the client, and as he entrust him with secrets, he is not to disclose them without his leave...71