A Public Safety Exception to Solicitor—Client Privilege

Abstract

There is now universal recognition that solicitor–client privilege is more than a mere rule of evidence. It prohibits disclosure by a solicitor of client confidences in all circumstances, including those where no judicial proceeding is in existence. Accordingly, if during a solicitor–client communication that is protected by privilege, the client announces his or her intention to commit a crime of violence, privilege prevents a disclosure by the solicitor to the police of the client's intention. This conflicts with the permission to disclose in such circumstances that is granted by chapter 16.02(3) of the Law Society's Guide to the Professional Conduct of Solicitors. This article explores that conflict and recommends recognition of a ‘public safety’ exception to solicitor–client privilege which would permit disclosure in this class of case. The operation of such an exception is then considered.