LA FORMACIÓN DE MAESTROS COMO PROCESOS DE DECONSTRUCCIÓN

The privilege21 developed slowly and haltingly, through a number of leading cases, from the right of the lawyer to a right that belonged to the client and could only be waived by the client. Lord Brougham in the Court of Chancery championed this development. Client legal privilege was deemed paramount, and as such, it trumped the countervailing policy that the courts should have access to all the available evidence. A word of caution from Professor Harzard is appropriate.

There may be a sufficient justification for the privilege; indeed the verdict of our legal history is to that effect. But no argument of justification should ignore the fact that the attorney-client privilege, as far as it goes, is not only a principle of privacy, but also a device for cover-ups. That, of course is what makes contemplation of it both interesting and troubling.22.

The history of client legal privilege in English law can be traced to the reign of Elizabeth 1 in the 16th century when adversarial trial procedures were in their formative stages.23 The privilege initially belonged to gentlemen, and the courts recognised the right of gentlemen not to violate a pledge of secrecy. The class of gentlemen included barristers24 but not advocates, solicitors, businessmen or scriveners as they were more commonly known. Elizabethan confidentiality existed to protect the honour and integrity of the gentleman,25 the holder of the confidential information and the secrets entrusted to them by their clients.26 The privilege belonged to the barrister as a gentleman, it was for the barrister to decide whether to protect

19

Julius Stone has influenced a number of activist judges on the Australian High Court including Justice Michael Kirby.

20 _{Karl N. Llewellyn, 'Remarks on the Theory of Appellate Decision and the Rules or Canons about How} Statutes are to be Constructed' (1949-1950) 3 Vanderbilt Law Review 395, 401-406.

21

The word ‘privilege’ comes from the Latin private lex, a prerogative given to a person or to a class of persons.

22 _{Geoffrey C Hazard, ‘An Historical Perspective on the Attorney-Client Privilege’ (1978) 66 California} Law Review 1061, 1062.

23

The statute of 1562 Act for Punishment of Such as Shall Procure or Commit Wilful Perjury, 5 Eliz I Ch 9, compelled witnesses to attend and testify. The practice of reporting case was not widely practiced till 1557.

24 _{Max Radin, ‘The Privilege of Confidential Communication between Lawyer and Client’ (1927-1928)} 16 California Law Review 487, 487: ‘In France they constituted a noblesse de la robe, only very little below the formal nobility and constantly seeping into it.’

25 _{The Sex Disqualification (Removal) Act 1919, 9 & 10 Geo 5, c 71, abolished the prohibition on women} becoming barristers; it also enabled women to become jurors and to enter the civil service. Ivy Williams was the first woman to be called to the English bar in 1922.

the communication by claiming privilege or to decline, it as he saw fit.27 The barrister as a presenter of evidence and argument to the court was considered not merely an ‘officer’ of the court, but a member of it.28 The advocate, solicitor, or scrivener did not have such high standing; they were men of business viewed as servants of the family whose business and affairs they managed. The solicitor prepared the file for the client’s case, drafting the pleadings, and making arrangements on behalf of the client, for the assistance of the barrister to present the case to court. The scriveners ‘enscribed’ documents and may also have given advice on the side.29

Scrivener Notaries, were in a class of their own, they had the role of writing up legal documents. They were required to undertake a two year apprenticeship, be fluent in one or more foreign languages, and be familiar with the principles and practice of foreign laws.30 They enjoyed a form of privilege, as Lord Sumption noted.

From the origins of the privilege in the late eighteenth century to the present day, the case law refers to it as attaching to the advice of lawyers, i.e. barristers, solicitors and attorneys and, in the very early days of the doctrine, the scriveners who drew up wills, charters and other legal instruments. In most of the early cases lawyers were identified in contradistinction not to other sources of professional legal advice, but to professionals whose advice was not legal at all, such as priests or doctors. Once this distinction became too well understood to require repetition, the references in the cases to the advice of lawyers persisted but simply reflected the assumption that lawyers were the only source of skilled professional legal advice. 31

Accountants in this period would have been considered simply as scriveners.32 There was an old and powerful sentiment that servants must keep the secrets of the master. The Roman

27 _{James A Gardner, ‘A Re-evaluation of the Attorney-Client Privilege’ (1963) 8 (3) Villanova Law} Review 279, 289.

28

Hazard, above n 22, 1071. This is an argument that is still put forward by the legal profession to restrict client legal privilege to the legal profession.

29 _{Ibid 1070.}

30 _{These scriveners were governed in London by the Worship Company of Scriveners, a Company} founded in 1373 and granted its Royal Charter by King James 1 in 1617. The status of the Scrivener Notary may derive more from the Notary role than the Scrivener, as the title suggests that they were Notaries Public, a recognized legal office in civil law systems and used to notarise or authenticate documents to be used in foreign jurisdiction in particular.

31

R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1 [121] (23 January 2013). Lord Clarke in the same case [142] repeats the statement. ‘The privilege also applied historically to scriveners.’

32 _{Maria Italia, ‘Gentleman or Scrivener: History and Relevance of Client Legal Privilege to Tax} Advisors” (2010) 6 (1) International Review of Business Research Papers 391. See also Stephen R Walker, ‘The Genesis of Professional Organization in Scotland: a Contextual Analysis’ (1995) 20(4) Accounting, Organizations and Society 285. The first modern organization of professional accountants took place in Scotland in 1853. See also David Sugarman, ‘Who colonised whom? Historical Reflections on the Intersection between Law, Lawyers and Accountants in England’ in Yves Dezalay and David Sugarman (eds), Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets (Routledge, 1995) 227 ‘The rise in the number of accountants and the formation of a new profession and a professional association came about in the 1800s as solicitors professionalized themselves. They modelled on barristers. They ejected those doing book keeping from the profession as not being gentlemen’.

precedent that the servant could not testify against his master is believed to have influenced the principle of confidentiality.

At Rome the public policy which supported the privilege was not directed against self- incrimination, but against the corruption of the family – or quasi-family – relations which would ensue by making uncertain and suspicious what was assumed to demand the fullest confidence, uberrima fides. The policy which sought to conserve uberrima fides was consciously deemed superior to that which sought the correct settlement of controversies or the punishment of offenders, with the one exception of treason.33

The servant was part of the family and the relationship of all members of the family was based on mutual fidelity. The theory seems to have been that if a member of a family testified on behalf of another they could not be believed because they had a strong motive for misstatement.34 Advocates from very ancient times in Rome, could not be called as witnesses against their clients while the case was in progress and in the fourth century both advocates and attorneys were, by imperial mandate, made incompetent as witnesses in the case in which they acted.35 That the Roman precedent was the source of the English rule cannot be proved.36 It may be that the oath and the honour of the attorney and the operation of the adversarial legal system were sufficient to explain the privilege.37

There was much confusion within the common law, over whether legal advice privilege or litigation privilege, formed the initial basis of privilege. The courts tended to refer to ‘professional privilege’ without necessarily distinguishing between the two limbs of privilege. Lord Carswell in Three Rivers Council v Bank of England38undertook anextensive investigation of the historical development of privilege, and found litigation privilege to be an extension of the legal advice privilege based on the confidential communications between lawyer and client.