208 question: confidentiality vs privilege (1 Viewer)

hannahxxx

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Hey all, hope the exam is treating you well! (lol). I've cross-posted this over on the general law forum too so hopefully someone will write back :/
I’ve read and re-read the course stuff on this topic, but I’m still having difficulty in discerning when these concepts need to be applied. My understanding is that confidentiality is broader than privilege, it can be an implied term in the retainer, and a breach can also make lawyers liable to disciplinary action as a result of breaching the Solicitor’s Rules, for instance. Client privilege is a narrower form of confidentiality, and can specifically protect a wider array of communications. It is justified on ‘public policy’ grounds (all my material is a bit vague on what this actually is). It is protected, not by contract/tort & legal professional rules etc, but by statutes like the Evidence Acts and is also protected under common law. It can do things like prevent lawyers from testifying against their present or former clients, and protect “privileged” documents/communications from being taken/used/read by investigatory bodies.

I know that there is “advice privilege”, and that if the dominant purpose test can be proven in relation to a particular lawyer-client communication then that can be protected. But I am having trouble in applying client privilege to communications which are not being requested by investigatory bodies, and are not communications that will likely be used as evidence. The case I am trying to apply it to ( fellow 208ers will already know, and perhaps be able to help ?) involves a lawyer letting slip to a husband that his wife (to whom the lawyer has given legal advice; it is implied she has signed a retainer) is considering divorcing him. Obviously the husband would find out sooner or later if she decided to go ahead with the divorce, but my issue is, what if she doesn’t go ahead with it? I know this is a breach of confidentiality because it isn’t yet public knowledge, but I am trying to see if legal professional privilege applies. All the cases I have read about privilege seem to be about big companies protecting information in court.

Any help greatly appreciated :/
 

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