In continuation of protect your back!, this article dives deeper to its development in English, United States and Canadian law, juxtaposing it with our locally flavoured Malaysian Law. We will then consider what it may look like going forward.
Introduction
Litigation privilege developed in common law jurisdictions almost concurrently with the United States. It was recognized by the U.S. Supreme Court as the work product doctrine in Hickman v Taylor (1). It is seen as separate and distinct from solicitor-client privilege which gives it a slightly different status from its common law cousins. In some jurisdictions, litigation privilege came to be seen as a branch of the larger solicitor-client privilege, with legal advice privilege as the other branch.
Indeed, in English law this remains the case (though the term “solicitor-client privilege” has there been replaced by the term “legal professional privilege”) (2). In Canada, most courts accepted the English position that litigation privilege was a branch of solicitor-client privilege. However, in some Canadian courts this idea was challenged, with the suggestion that litigation privilege had become a separate and distinct privilege having an entirely different basis and rationale.
Previously, a record could enjoy the protection of litigation privilege if a substantial purpose of its creation was anticipated or ongoing litigation. However, the Waugh (3) decision adopted the more stringent dominant purpose test, which said the privilege would only apply if reasonably anticipated or ongoing litigation was the primary purpose for which the record was created (4). The Courts in Canada debated whether to adopt the dominant purpose test or to stick with the substantial purpose, and eventually did adopt the new test (5).
Unpacking the Rationale
By now you must have noticed that Litigation Privilege as defined in common law jurisdiction adopts the word “privilege” and the U.S. concept describes it as a “doctrine”. The difference here is intentional because in a doctrine at least some material it protects can be made subject to discovery if the facts thereby concealed cannot be ascertained from other sources.
By contrast, litigation privilege is a true privilege. If it applies, then there is immunity from discovery in legal proceedings to the same extent where legal advice privilege applies.
In England
In England, as noted above, the litigation privilege is viewed as a branch of legal professional privilege. Consequently, the rationale for litigation privilege rests on an expanded version of the general rationale for legal professional privilege. An oft-quoted version of the rationale is the one articulated by Jessel M.R. in the Chancery Division in Anderson v. Bank of British Columbia (6):
“The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule”
In discussing the extent of the rule, Jessel M.R. noted that “solicitor’s acts must be protected for the use of the client”, including the obtaining of information from a third party for the purpose of the litigation, “and it must be protected upon the same ground, otherwise it would be dangerous, if not impossible, to employ a solicitor.”
The reasons here are clear, to summarize:
The client will only receive the best legal advice if he or she trusts the lawyer enough to divulge all relevant facts.
The adversary process is founded on the principles of party autonomy. Each party has the freedom to prepare in private so as to make the strongest possible case.
In the U.S.
In the United States, unlike England, the work product doctrine is not a privilege at all, nor a branch of attorney-client privilege (as solicitor-client privilege is known). Consequently, work product doctrine is justified by a rationale strictly separate from that advanced for the attorney-client privilege. The rationale propounded by Justice Murphy in the Supreme Court decision of Hickman v Taylor (7) is quoted as follows:
“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case (153 F.2d 212, 223) as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.”
So here the underlying rationale for work product doctrine is to encourage lawyers to prepare their cases thoroughly and to investigate not only the favorable but the unfavourable aspects of the cases and to ensure that attorneys have the maximum incentive to prepare for trial by creating useful litigation-related information.
Therefore, the difference here with English law is the absence for the needs of a client to have confidential relationship with the lawyer to get the best possible advice.
In Canada
The rationale used to underpin litigation privilege has tended to mirror the U.S. law rationale. As an example, Justice Fish’s description of the purpose of litigation privilege in Blank reads as follows:
“Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.”
Thus, the Canadian rationale, like the U.S. focuses on facilitating the adversary process by encouraging thorough trial preparation, although with the twist that it recognizes that clients are sometimes unrepresented and thus the ones who must do the trial preparation.
In Malaysia
Here, as discussed in the previous article we follow the English position albeit less developed. If we search through our reported cases we find that this principle has not been thoroughly tested. There may be good reason for this because procedural law in Malaysia today (similar with England) does have the same scope for intrusive discovery as the U.S. arguably does. As such there is arguably a less acute need for privilege as a protection against unreasonable discovery tactics.
Going Forward
We may actually see a decrease or should we say a partial phasing out of this type of privilege in the future. Does this protection really assist the noble objective of promoting the function of the adversarial process and by extension an effective legal system or does this near-absolute privilege assist the corporations and governments more?
Thus, there is an argument that can be made that the rationale for litigation privilege, given that it is, like solicitor-client privilege, based at least in part on a rights basis, should not be extended to corporations and governments. There are arguments to remove the availability of solicitor-client privilege from governments in order to promote government transparency so as to encourage more accountability and thus foster a more democratic society would seem equally applicable with respect to litigation privilege.
One could indeed ask why the government should enjoy the ability to shield documents from disclosure to adverse parties in litigation that it obtains or creates using the immense resources and powers of the state while being denied the comparable ability to shield confidential communications between lawyers and government officers and employees made to give and obtain legal advice with respect to the day-to-day workings of government.
In my view, with the mature development of the discovery process in Malaysia it seems that a further progress in litigation privilege in the direction of England, U.S. and Canada may not be in the best public interest at large.
Thus, litigation privilege must be recognized, that is not in contention here. However, if it develops further in Malaysia it should do so conservatively (as it is now) not forgetting the unequal power difference of individuals against the government or big corporations. It will certainly be interesting to see how our appellate Courts handle this matter in the future.
Reference:
329 U.S. 516 (1946).
Phipson on Evidence (London: Sweet & Maxwell, 2005), p. 602 (§23-19).
Waugh v. British Railways Board, [1980] A.C. 521, [1979] 2 All. E.R. 1169 (H.L.).
PROTECT YOUR BACK! – How to prevent important documents from falling into your opponents’ hands.
Blank v. Canada (Minster of Justice) [2006] 2 S.C.R. 319, 2006 SCC 39.
(1876) 2 Ch. D. 644.
Hickman v. Taylor, 329 U. S. 495 (1947).
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