Penetration Testing mailing list archives
RE: Pen test - Attorney client Privilege?
From: "Craig Wright" <cwright () bdosyd com au>
Date: Thu, 20 Oct 2005 10:07:06 +1000
Hello, First I speak in relation to common law and admit I have little experience with civil law jurisdictions (eg the US). The House of Lords (Lord Carswell) has made clear there are two main types of legal professional privilege: i) legal advice privilege, and ii) litigation privilege. Legal advice privilege protects from disclosure communications between a lawyer in his professional capacity and his client, provided they are confidential and are for the purposes of seeking or giving legal advice. Communications with an independent third party (even if created with the purpose of providing legal advice to the client) are not covered by this head of privilege, which applies whether or not there is any litigation. Litigation privilege arises only where litigation or other adversarial proceedings are contemplated or ongoing. In addition to documents that would be protected by legal advice privilege, litigation privilege protects all communications produced for the sole or dominant purpose of the litigation, including all communications between; i) a lawyer and his client; and ii) the lawyer or client and an independent third party such as a factual or expert witness. Although the Law Lords considered that the Court of Appeal in "Three Rivers and others v. Governor and Company of the Bank of England (No 6) [2004] 2 WLR 1065" did not give legal advice privilege its proper scope and defined it too restrictively. Lords Scott, Rodger, Carswell and Baroness Hale all referred approvingly to the Court of Appeal decision in Balabel v Air India [1988] 1 Ch 317, where Taylor LJ said that, for the purposes of attracting legal advice privilege: '... legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.' Privilege only applied in cases namely whether lawyers are being asked 'qua lawyers' (in their capacity as lawyers) to provide legal advice. So, for instance, advice by a solicitor on business matters, including investment policy and finance policy, may not have a relevant legal context. Lord Scott has made comments "are obiter" (made in passing) which could apply in limited circumstances. These however are not binding. Craig The attached document is from the University of Pennsylvania. As stated I have little experience with Civil Law jurisdictions such as the US, but this may be or interest. THE ATTORNEY-CLIENT PRIVILEGE I. INTRODUCTION The attorney-client privilege is an essential element of our legal system. The privilege promotes full communication between an attorney and his or her clients, who need not fear that these communications will be disclosed to others. The privilege belongs to the client, and the attorney must hold client communications in the strictest of confidence. II. ELEMENTS OF THE ATTORNEY-CLIENT PRIVILEGE The elements of the attorney-client privilege are: The party seeking the protection of the privilege must be an actual or prospective client. The party or client can be a corporation. Since a corporation acts through individuals, management must assert the privilege on behalf of the entity. Communications to counsel from current employees regarding matters within the scope of their duties can be protected in this manner. The communication must be between the client and an attorney acting as counsel for the client. The privilege protects communications to and from attorneys, encompasses communications with attorneys agents and extends to communications conveying advice of counsel. Third party communications (e.g., reports of consultants retained by a corporation) generally are not protected, unless the consultant is retained directly by counsel. The communication must be made in confidence, outside the presence of third parties. "Public" communications are not protected. Discussions of an advisory committee composed of community representatives as well as Health System members, for example, would be beyond the scope of the privilege. The purpose of the communication must be to secure or provide an opinion of law or legal assistance. The privilege protects legal advice and factual information communicated for the purpose of securing and rendering legal advice. The privilege does not protect the underlying facts, general legal discussions, business or other non-legal advice. The privilege must be asserted. The privilege does not automatically attach, and it must be claimed at the time of demand by a third party. The privilege belongs to the corporation, not to individual trustees, managers or employees. A corporation can waive the privilege over the objections of individual employees, should it choose to do so. The privilege is easily lost or "waived" by disclosures to third parties. The privilege can be lost by voluntary disclosure (e.g., in response to interrogatories or subpoenas). Also, involuntary or accidental disclosure may destroy the privilege. III. EXCEPTIONS The privilege does not attach to communications in furtherance of an ongoing or prospective illegal activity. In addition, the privilege does not apply when an attorney defends himself or herself against charges of wrongful conduct (e.g., client asserts malpractice in representation). IV. WHEN TO SEEK PROTECTION Members of the Health System should be mindful of maintaining the attorney-client privilege in a variety of circumstances, including: In anticipation of potential litigation. During the investigation of past conduct that may raise legal concerns. Seeking advice on structuring new ventures (e.g., proposed merger). Peer review and risk management (e.g., quality improvement; malpractice defense). Any other sensitive issues where legal input may be helpful and confidentiality is critical. V. INVOKING THE ATTORNEY-CLIENT PRIVILEGE: ORAL COMMUNICATIONS For the attorney-client privilege to protect oral communications, it is best to have an attorney from Legal Affairs participate directly in the discussion. Therefore, counsel should be present when the purpose of any meeting is to obtain or discuss legal advice, or to gather information needed to obtain legal advice or assistance. Only employees who have a need-to-know should attend such meetings, and non-client third parties should not attend. Be careful not to divulge privileged communications in minutes or other memoranda. Do not discuss attorney-client information on: (1) mobile telephones; or (2) in public places (such as elevators) where you would expect to be overheard. VI. INVOKING THE ATTORNEY-CLIENT PRIVILEGE: WRITTEN COMMUNICATIONS The privilege may be invoked in memoranda, correspondence and other written communications by adhering to the following guidelines: Identify and assert the privilege on the document, i.e., mark the document "Attorney/Client Privileged Communication." Send the document to or from a Health System attorney and limit distribution to a need-to-know basis. Identify all recipients on the document, with no blind copies. Avoid the attachment of unprivileged material or written notes on the document. Treat the document in a confidential manner and maintain the document in a secure place. Information contained on computer disks, hard drives and back-up systems may also be protected by the attorney-client privilege. VII. EXECUTIVE COMMUNICATIONS IN THE ABSENCE OF COUNSEL Executives may communicate legal advice received from counsel to other executives or employees who have a need-to-know without destroying the privilege by identifying communication as legal advice, limiting communication to counsels advice, not including underlying facts and segregating legal discussion from other topics. VIII. DEALING WITH INADVERTENT DISCLOSURES When there are inadvertent disclosures, take immediate action by consulting counsel, telling the recipient the disclosure was inadvertent, requesting return of any written materials and confirming these steps in writing, if appropriate. ------------------------------------------------------------------------------ Audit your website security with Acunetix Web Vulnerability Scanner: Hackers are concentrating their efforts on attacking applications on your website. 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Current thread:
- Pen test - Attorney client Privilege? rob havelt (Oct 15)
- Re: Pen test - Attorney client Privilege? Paul Robertson (Oct 16)
- Message not available
- Re: Pen test - Attorney client Privilege? rob havelt (Oct 16)
- Message not available
- RE: Pen test - Attorney client Privilege? Lyal Collins (Oct 19)
- Re: Pen test - Attorney client Privilege? Paul Robertson (Oct 19)
- Re: Pen test - Attorney client Privilege? ma.teo (Oct 19)
- Re: Pen test - Attorney client Privilege? Thor (Hammer of God) (Oct 19)
- Re: Pen test - Attorney client Privilege? Paul Robertson (Oct 16)
- <Possible follow-ups>
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 19)
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 19)
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 19)
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 19)
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 19)
- Re: Pen test - Attorney client Privilege? Paul Robertson (Oct 19)
- RE: Pen test - Attorney client Privilege? Craig Wright (Oct 20)