Tuesday 10 December 2019

Why dealings between lawyer and client must always remain private

Remy Farrell

The recent controversy over the taping of calls to and from garda stations has rightly focused on the possibility that communications between suspects and their solicitors may have been recorded. If such recordings took place then it will be for the Commission of Inquiry to consider the circumstances in which this happened and quite possibly the consequences.

It may well be that some or even most of the calls in question were recorded through inadvertence or by default. It is quite possible that most of them were never even listened to.

However, this does not mean that the recording was anything less than a serious and unconscionable intrusion.

For centuries the secrecy attaching to communications between lawyer and client has been regarded as absolute and sacrosanct. This is for very good reason. If a person were to think that what he told his lawyer could be disclosed then he might well be afraid to consult with a lawyer in the first place or might only tell half his story when he did.

There would be little point in having the right to legal counsel if the advice received was not subject to a duty of the utmost confidence. There are no circumstances in which that confidence can be properly broken.

It is for this very reason that the taping of calls which might include legally privileged communications is incapable of being justified. If there are no circumstances in which the substance of the communication might be properly listened to then there are no circumstances in which the communication itself might be properly intercepted.

The idea of the forces of the State intercepting the communications passing between those suspected of serious crimes and their lawyers is not entirely new. Many of those involved in legal practice in Ireland will know well the name of Leonard MacNally, a barrister who represented many of the United Irishmen in the aftermath of the 1798 Rebellion. He also appeared for Robert Emmet some years later when he was tried for high treason.

MacNally's notoriety is not as a result of his impressive client list but rather due to the fact that he systematically sold out his clients by disclosing their confidential instructions to him to the spies of Dublin Castle for a fee. He disclosed the contents of his brief in the defence of Emmet for £200 in addition to the fee he charged the luckless rebel.

As an aside he was also a playwright and somewhat maudlin poet whose credits include 'The Lass of Richmond Hill'.

His treachery only became apparent after his death in 1820 when his widow sought payment of the pension he had been awarded by Dublin Castle for his services. It caused a scandal when it became public. Not just because he had breached his duty of confidentiality to his client but also because the State had been entirely complicit in it.

The record of his correspondence was kept by Dublin Castle. It would seem that then, as now, police forces are compelled by some urge to file away and preserve such records even where they might be regarded as potentially embarrassing.

Today the mention of MacNally's name sends a shudder down the spines of lawyers who know the story. There is a special place in hell for lawyers who rat out their clients.

Whilst our legal system clearly regards communications of this sort as absolutely confidential it is less well-equipped to deal with situations where such communications are inadvertently intercepted. For example: where during a search under a search warrant the gardai seize a large amount of documentation, some of which may be privileged lawyer- client communications.

How can the gardai determine what is privileged and what is not without reading the material and thereby breaching the privilege? This has been an intractable problem in Ireland for some years now. There is an obvious chicken and egg flavour to it. It may well become a major headache for the Commission of Inquiry in due course – just how are they supposed to deal with privileged material that may have been inadvertently recorded by the gardai?

As in many other respects we are some way behind other countries who have elaborate procedures for dealing with the handling of potentially privileged material that falls into the hands of the State. These generally involve some form of independent and confidential arbitration by a disinterested lawyer or judge.

Just as the recent scandals would appear to have provided an irresistible impulse for much needed reform of the gardai it is to be hoped that consideration might also be given to making some provision for the handling of privileged material of this sort.

REMY FARRELL IS A SENIOR COUNSEL

Irish Independent

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