Legal Professional Privilege

Jonathan Auburn is a Barrister at 4-5 Gray's Inn Square.

• Conceptual and historical introduction: place of the privilege; dating of the privilege's origin; the original reason for the privilege - honour theory?; need for historical revision; book thesis - balancing and absoluteness. part A Theoretical foundations: emerging common law right - introduction, non-rights instrumentalism and utilitarianism, rights, context, Canada, Australia, South Africa, New Zealand, England, European Court of Justice, United States, analysis of authority, "mere rule of evidence", rationale and the rules of privilege, conclusions; privilege under the European Convention on Human Rights - introduction, section 1 article 6, section II article 8, conclusion; confidentiality - introduction, section 1 theoretical importance of confidentiality, section II practical importance of confidentiality - theories of practice, section III practical importance of confidentiality - empirical evidence, conclusions; disclosure - introduction, section I theory - goal of truth in litigation, section II practice - value placed on disclosure and compulsion, section III assessing the detriment to truth, conclusions; structure of the privilege - general theory - introduction, section 1 rationale and the balancing issue, section II basics of the balancing debate, section III level of abstraction, conclusions; structure of the privilege - application - introduction, section I current approach and explanation, section II consistency with privilege derogations, section III consistency with substantive rules of privilege, section IV rule balancing as a judicial function, conclusions. Part B practical applications: crime-fraud exception - introduction, brief history, section 1 the two rationales, section II choosing between the two rationales, conclusions; criminal exculpatory evidence - introduction, section 1 principle of in favorem innocentiae, section II place in the privilege, conclusions; loss of privilege based on intent and disclosure (waiver) - introduction, section 1 intent based on loss of privilege, section Ii disclosure based loss of privilege, section III meaning of privilege where it exists despite closure, conclusion; fairness based loss of privilege (waiver) - introduction, partial disclosure, putting in issue and related rules, analysis of the fairness rationale, effect on absoluteness of the privilege, the effects of waiver - total or partial abrogation, conclusion; inadvertent disclosure - introduction, section I the unresolved problem, section II principles grounding relief, conclusion; past and future directions.