Legal Professional Privilege: Is It Absolute?

Abstract

Legal Professional Privilege ('LPP') is deeply rooted in the common law and has even been described as a right of a constitutional nature. In the recent decision of the Three Rivers case (2005), Lord Scott described LPP as an 'absolute right', subject only to the well established crime / fraud exception. In another decision, Taylor CJ opined that once LPP is established, it is not subject to any further balancing exercise. In contrast, the Canadian Supreme Court refused to adopt the same approach and decided to subject LPP to the same proportionality exercise as any fundamental constitutional right. This article explores the scope of LPP and argues that the Canadian approach should be preferred. While the Canadian approach seems to have been endorsed by the Court of Final Appeal in a recent disciplinary appeal, it criticises the Court of Final Appeal for having swung the pendulum too far by adopting a relatively loose standard to allow LPP to be abrogated. Finally, it explores how the Court should approach an application for a warrant to conduct covert surveillance under the newly adopted Interception of Communication and Surveillance Ordinance 2005 when such covert surveillance may interfere with LPP.