One of these rights is solicitor-client privilege. It is a privilege that belongs to the client (not the lawyer) in a client-lawyer relationship. It does not apply to consultants who are not legally qualified. [4] Therefore, only the customer can do without it. In the law of England and Wales, solicitor-client privilege is divided into two types: advisory privilege and litigation privilege, the former being more absolute and defined more broadly than the latter. One of the most striking examples of the effective application of solicitor-client privilege is antitrust searches, i.e. on-the-spot investigations at a company`s premises and interviews with employees by the relevant antitrust authority. Best practices in mature jurisdictions demonstrate the effectiveness of legal privilege when used to remove certain documents from the scope of an antitrust investigation, or at least prohibit their use as evidence. Solicitor-client privilege was originally a common law principle of evidence, similar to hearsay, but has since been recognized as a constitutionally protected substantive rule. This recognition began with R.
v. Solosky (1979), where Dickson J., retracing his story, considered it to be a “fundamental civil and legal right” that guaranteed clients a right to privacy in their communications with their lawyers, even outside a courtroom. [9] Unlike the EU approach, solicitor-client privilege in the United States may also include communications with registered in-house counsel who are active members of a national bar association. In order to be protected by such privilege, the corresponding internal communication is carried out on the instructions of a senior official and with the clear purpose of obtaining legal advice limited to the employee`s area of responsibility, which cannot be published. It is also important that this type of legal privilege be limited to legal matters only. Like the EU, the status and access to legally privileged documents in the US is regulated by special regulations. Therefore, refusing to disclose documents subject to solicitor-client privilege (both counsel and work product) is not considered an obstacle to an antitrust investigation. In addition, in order to obtain privileged data, the U.S.
Antitrust Commission must obtain the written consent of the U.S. Assistant Attorney General. It should be noted, however, that in the United States there is criminal liability for certain violations of competition law, so solicitor-client privilege takes on a different meaning in proceedings of this nature. In R. v. McClure [2001] 1 S.C.R. 445, the Court held that solicitor-client privilege was a principle of fundamental justice and indicated that it could be protected under section 7 of the Charter. The purpose of this legal principle is to protect an individual`s ability to access the justice system by encouraging full disclosure to legal counsel without fear that disclosure of such communications could harm the client in the future. It should be noted that, unfortunately, the trend that gives qualified lawyers the power to represent them before the courts in the context of the forthcoming reform in Ukraine concerns only judicial proceedings. Other types of administrative procedures are currently beyond the scope of reform. This leaves open an important part of the official procedures, for example very specific AMCU investigations. At the same time, the preservation of professional secrecy in AMCU investigations requires special regulation, as these investigations involve economically sensitive matters as well as extensive investigative powers of the AMCU: the right to seize documents, servers, search rooms, interview employees, to name a few.
Given the legal gaps regarding the status and treatment of privileged documents, the use of an independent external lawyer licensed at the Bar to assist in antitrust cases (at least the most complex such as abuse of dominance, anti-competitive concerted actions, leniency and on-site investigations) seems highly recommended. In addition, a client must be assured that advice on antitrust compliance matters is a protected communication. This instrument for protecting privileged and confidential communications between client and lawyer will increase the general approval of best practices in compliance with competition law. An important part of conducting business is the ability to receive open and open advice from your lawyer without the risk of having to disclose the advice received. Equally important for individuals and businesses is the ability to prepare or defend a lawsuit without having to publish your case on the other side. Privilege is a legal right that allows people to object to the mandatory disclosure of documents and information. The fact that a document is sensitive or confidential is not a barrier to disclosure, although privileged documents must be confidential. There are two main types of privilege protection in English and American law. These broadly protect solicitor-client communications (solicitor-client privilege under U.S.
law and legal privilege under English law) and documents prepared for litigation (work product doctrine under U.S. law and litigation privilege under English law). There are strict rules regarding when each of these types of permissions applies. Lamer J. tested solicitor-client privilege in Decoteaux v. Mierzwinski[11]: More specifically, professional secrecy in competition proceedings has been recognised in the EU since 1982, when it was first raised by the Court of Justice of the European Union in the case of AM&S Europe Ltd v. European Commission. Subsequently, in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. In the Commission`s cases, the Court has held that professional secrecy covers a company`s written communication with an independent lawyer who is admitted as a lawyer and, as such, is subject to disciplinary and ethical review; However, it does not apply to communications and documents prepared by a registered in-house lawyer due to the lack of independence of that in-house lawyer due to a working relationship with a company, even if that registered in-house lawyer is a member of a national bar association. In addition, there is no professional protection for labour products in the EU that would invoke the privilege for materials created for defence purposes in an anticipated dispute. In practice, privilege may include preparatory documents that have not been exchanged with outside counsel if these documents were prepared solely for legal advice, as well as internal notes that reproduce the text or content of the original solicitor-client communication. As regards communication with foreign lawyers, the privilege extends only to communication between the client and a lawyer admitted to practise in one of the EEA Member States.
In general, Canada has adopted John Wigmore`s definition of solicitor-client privilege: In general, solicitor-client privilege is guaranteed by the Law of Ukraine on the Defence and Practice of Advocacy in Ukraine of July 5, 2012 (hereinafter the Law). The Act provides for a wide range of matters relating to matters protected by solicitor-client privilege, namely: a lawyer admitted to the Bar. However, the law is silent on the status of privileged data when it is requested by a customer as part of a formal procedure. As is clear from the law, even such a limited rule is silent on whether legal privilege can apply to a registered in-house lawyer if admitted to the bar. This leaves considerable scope for the competent authorities to require disclosure of this information directly to an undertaking under investigation. Unlike the special treatment and specific procedural rules for such material in the EU and the US, this legal loophole in Ukrainian law presents a significant legal risk of inadvertent disclosure of privileged data in the absence of the necessary remedy. This is all the more important in view of the current trend of granting the power of judicial representation only to qualified lawyers. In view of the above, there is an urgent need to explain the respective approaches to the treatment of privileged documents in official investigations, as well as the mechanism for monitoring the prudent use of solicitor-client privilege by lawyers by the Ukrainian Bar Association.
Solicitor-client privilege is a legal concept that protects communication between a client and his or her lawyer and maintains the confidentiality of communications in civil and criminal cases. This privilege promotes open and honest communication between clients and lawyers. However, in the United States, not all state courts consider lawyers` communications to be confidential. For example, Washington State law and federal courts when applying federal law only protect customer communications; Solicitor`s communications are protected as privileged only to the extent that they contain or disclose the client`s communications. [ref. needed] In contrast, California law protects confidential attorney communications, whether they contain, reference, or disclose the client`s communications.