The High Court must decide who the client was in the case being taken by Cardinal Connell, writes Carol Coulter, Legal Affairs Editor
The protection of communications between a client and his or her legal adviser goes back a long way, and is protected by law throughout the common law world. This is known as solicitor-client privilege, and is being invoked by Cardinal Desmond Connell in his challenge to the release of documentation to the Murphy commission on priests suspected of abusing children.
Solicitor-client privilege encourages a client to disclose all relevant information to his or her lawyer so that a case can be thoroughly prepared, in the confidence that this will not be disclosed without his or her permission. It entitles a lawyer to refuse to reveal any information obtained during communications with his or her client in the course of being asked for, or giving, legal advice.
There are some exceptions, and the anti-money-laundering legislation now requires solicitors to give information if they are suspicious of the source of funds, but generally normal communications between a solicitor and client can remain confidential, including in court proceedings.
The issue of lawyer-client privilege has been tested in the courts, and in one US case five conditions were clearly laid out whereby privilege was attracted which are now generally accepted: the person asserting the privilege must be a client, or must have sought to become a client at the time of disclosure; the person connected to the communication must be acting as a lawyer; the communication must be between the lawyer and the client exclusively - no non-clients may be included in the communication; the communication must have occurred for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing a crime; the privilege may be claimed or waived by the client only.
Thus the privilege belongs to the client, not to the lawyer, and only the client can waive it. However, complications can arise when the client is a corporate body or an organisation, with inevitable changes in leadership as time goes by.
Who then possesses the privilege - the body or organisation, or the individual at the head of it at the time?
This is normally easy to ascertain, as it is established by who paid for the advice. If the organisation paid for it, then the organisation is the client, and it is up to the organisation to decide whether or not it wishes to waive its right to privilege.
If the individual personally commissions and pays for the advice, and seeks it to uphold and defend his or her own rights, then the individual is the client.
It is not unknown for individuals in positions of authority to seek legal advice on their own behalf when a controversy engulfs their organisation. They would also be involved in commissioning advice on behalf of the organisation. Two sets of lawyers would then be involved, and the individual would have a relationship with both, but he could only continue to assert his right to claim privilege in relation to his communications with the one he instructed on his own behalf.
For example, in the UK the attorney general gave advice to the then prime minister Tony Blair relating to the legality of the Iraq war. Asked to disclose this, Blair said it was privileged advice and only the government could release it.
While the advice was given to Blair as prime minister, there is nothing to stop Gordon Brown from deciding, in the interests of transparency, to release the advice, as he now heads the government that commissioned it.
Blair would be unlikely to succeed in challenging that on the basis that the advice was given to him.
The question of lawyer-client privilege is not clear-cut, however, and from time to time the courts are asked to rule on it.
Often this involves adjudicating between conflicting rights, with courts weighing the benefits to be gained by upholding the privilege against the harm that might be caused by denying it.