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Vol 21 No 11 Nov/Dec 2016

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Legal Professional Privilege: Law & Theory

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ISBN13: 9781841131016
ISBN: 1841131016
Published: June 2000
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £64.00



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In the Commonwealth, the principle of legal professional privilege (""the privilege"") has been treated as almost sacrosanct and in consequence, derogations from it have been rare. The traditional view that, despite resulting unfairness, the rule must be absolute in order to achieve its stated goals is challenged here through an examination of the theoretical structure of and common law derogations from the privilege.

The author argues that the claims made of the rule in the past have been overstated and that the privilege is more robust than widely assumed. Being dependent on patterns of client behaviour, it can accommodate change, while still fulfilling its essential function. Having examined the theory, structure and main derogations from the privilege, Auburn asserts that we should be more sceptical of the claims made of the privilege, and in appropriate circumstances should give more weight to the values underlying the disclosure of evidence.

This analysis presents a new approach to the issue of legal professional privilege. It offers a thorough exploration of the principles underlying the privilege and, while not being an exhaustive analysis of all aspects of the rule, it is unusual in that it takes a Commonwealth-wide approach, covering the law in England, Australia, Canada, New Zealand and South Africa, as well as drawing on relevant principles from European and United States law.

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Subjects:
Evidence
Contents:
1. Conceptual and historical introduction: place of the privilege

PART A: THEORETICAL FOUNDATIONS
2. Emerging Common Law Right
3. Privilege Under the European Convention on Human Rights
4. Confidentiality
5. Disclosure
6. Structure of the Privilege—General Theory
7. Structure of the Privilege—Application

PART B: PRACTICAL APPLICATIONS
8. Crime-fraud Exception
9. Criminal Exculpatory Evidence
10. Loss of Privilege Based on Intent and Disclosure [Waiver]
11. Fairness Based Loss of Privilege [Waiver]
12. Inadvertent Disclosure
13. Past and Future Directions
Index