[Michael] Jackson, 45, is charged with committing a lewd act upon a child. [His] defense has been waging a campaign to suppress evidence [on the ground of] the attorney-client privilege of confidentiality.

News item, The Union-Tribune, San Diego, August 21, 2004.

Client-lawyer secrecy is one of the common law’s nobler achievements: it protects criminals but not the possibly innocent.

A judge sent me the High Court judgment in Carter (1995) with an instruction: “Read this and weep.” Louis James Carter, a Brisbane accountant charged with fraud, said certain documents covered by the privilege would prove his innocence. The fundamental question was: should judges opt for justice or law?

The voice of infallibility (by the usual narrow margin) went for law. Mary Gaudron and John Toohey said Carter should have the document; Gerry Brennan, a rather apologetic Billy Deane and Michael McHuge said he should not. He eventually got four years.

Sir James Knight-Bruce, chief judge in bankruptcy, advanced what must be the feeblest argument in favour of the privilege in Pearse v Pearse (1846). He began unpromisingly with a lie, and barely improved:
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice, [but] surely the meanness and the mischief of prying into a man’s confidential consultations with his legal adviser … are too great a price to pay for truth.”

As our illustrious proprietor observed in The Sydney Morning Herald of April 2, 2004:
“The truth is that companies of various shapes and sizes have for many years wheeled barrowloads of documents through the portals of the large law firms on the pretext of getting legal advice, but really hoping to achieve an ambit privilege from disclosing all sorts of unattractive details of their day-by-day conduct.”

The privilege first appears in Berd v Lovelace (1577), a century after lawyers began to take over control of the civil litigation process. Justice Michael Kirby, perhaps indulging a taste for irony, said in Propend (1997):
“Early cases suggested that it [the privilege] belonged to a solicitor and derived from his honour as a ‘professional man and a gentleman’.”

Crooks got a nasty surprise in 1743; James Giffard, a Dublin solicitor but no gentleman, revealed in Annesley v Anglesea that he had conspired with the Earl of Anglesea to commit the “most wicked crime” of seeking to procure the judicial murder of James Annesley, the true owner of vast Irish estates stolen by the earl.

Happily, however, Justice Sir Francis Buller discovered in Wilson v Rastall (1792) that the privilege actually belongs to the client. Rich criminals’ little


conspiracies were again safe from meanly prying eyes.

Gumshoe Philip Marlowe was cruelly blunt about it in The Long Goodbye (1953): “How long do you think the big-shot mobsters would last if the lawyers didn’t show them how to operate?”

Jeremy Bentham (pictured at top), whose clothed skeleton still gazes amiably at passers-by in the seat of learning he founded, University College, London, formulated what seems an unanswerable argument: if the client [e.g. Michael Jackson or Louis Carter] is innocent, the lawyer has no guilty secret to betray; if he is guilty, absence of the privilege would cause no injustice. Thus, he said, the privilege has no legitimate purpose and should be abolished.

But that was only 177 years ago; we can hardly expect infallible judges or the herpetoids’ chums in Parliament to torpedo secrecy just yet.

Besides, rich criminals would be terribly disappointed. 

September 7, 2004


Evan Whitton

… reminds us of Jeremy Bentham’s unanswerable argument on lawyer-client privilege