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Legal Professional Privilege

Could someone please help me with a layman's explanation of Legal Professional Privilege and its relevance in my case.

I sought advice from a lawyer regarding consent orders and if the other party or myself would be in breach over a certain action.  I received verbal advice that I would not be in breach.  The other party provided a letter from their Barrister explaining that the action was covered by the orders in his opinion.  I was asked to provide written proof I had seen a lawyer and obtained advice.  I never did that at the time.

I am now going to court for the contravention and asked the original lawyer to provide written confirmation of the advice he had given me.  He has only confirmed he gave me advice and is saying that his concern if he provides more information and I annex it to my Affidavit is that I will waive my right to legal professional privilege and that would be to my disadvantage.

I have looked up legal professional privelege but don't understand what it means in this context.

Your advice would be appreciated.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
It means that what is said between you and your lawyer is private, like when you go to your doctor.
I understand that but what I don't understand is why presenting what the lawyer told me in an affidavit as evidence would be to my disadvantage and why I shouldn't waive my legal professional privilege by doing that. 

If my ex is saying his lawyer said that I was breaching the orders and mine says I wasn't but it was him that breached the orders I would have thought that would bolster my case, not disadvantage it.

It must be some complex legal argument I suppose but I am having trouble understanding it and if it is worth worrying about in court.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
I will send you a pm later, I have recently wrote an exam on this, which should explain this to you pretty well. I will copy and paste the good parts later when I am on the computer.
larrisap said
I am now going to court for the contravention and asked the original lawyer to provide written confirmation of the advice he had given me.  He has only confirmed he gave me advice and is saying that his concern if he provides more information and I annex it to my Affidavit is that I will waive my right to legal professional privilege and that would be to my disadvantage.
His only obligation is to provide a letter saying he provided you with advice.  If he gave you written advice contrary to the case you are running and you attached this then you have waived your right to professional privilege.
larrisap said
 I understand that but what I don't understand is why presenting what the lawyer told me in an affidavit as evidence would be to my disadvantage and why I shouldn't waive my legal professional privilege by doing that.
Who instructed you to provide an Affidavit of what the Lawyer said? Are you sure you are not misinterpreting instructions? What someone else said (if you are specific) is hearsay and open to challenge. Any Affidavit would have to be very carefully written and fairly generic.
Conan

I have a tax invoice which proves I sought legal advice.  I was going to attach a copy of my notes from the session and also a letter he wrote me with advice about a related but slightly different aspect of the situation.

The letter he wrote me now is just that he gave me advice and his advice not to attach any documents to my affidavit due to the waiver of legal professional privilege.

What he told me at the conference 18 months ago and in the letter he wrote me bolster's my case, it is not contrary to the case.

Conan said
Who instructed you to provide an Affidavit of what the Lawyer said?
No one instructed me, I made the choice myself.  In a letter from the exes lawyer to me he says 'should you continue with your course ….. we urge you to get written legal advice from a competent lawyer confirming your alleged right to breach the orders'.  I never did that as my advice was verbal not written.

I chose to ask the lawyer for written advice as I was going to attach it to my affidavit as part of my reasonable excuse - not as the only part but to prove that I had received advice and it was contrary to the advice my ex received. And if I provided it as written form then it isn't hearsay - which actually Conan I thought was something that you did not hear yourself but were told was said.  This is clearly not hearsay as I would be reporting what the lawyer said to me directly.

I have now sent in my affidavit (served not filed) and because of this legal professional privilege thing I took out everything except the tax invoice.

However what I don't understand is that providing what the lawyer said would support my case not harm it and so I don't see what would be wrong in waiving my legal professional privilege.  I only consulted this lawyer three times and received written advice only once.

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larrisap said
No one instructed me, I made the choice myself.  In a letter from the exes lawyer to me he says 'should you continue with your course ….. we urge you to get written legal advice from a competent lawyer confirming your alleged right to breach the orders'.  I never did that as my advice was verbal not written.
You misinterpreted this. What the other side did was urge you to gain written advice about breaching the orders. You say you never did this and received only verbal advice.
larrisap said
I chose to ask the lawyer for written advice as I was going to attach it to my affidavit as part of my reasonable excuse - not as the only part but to prove that I had received advice and it was contrary to the advice my ex received.
You wrote earlier above that you received verbal and not written advice, now you say "I chose to ask for written advice", which is it please?
larrisap said
 And if I provided it as written form then it isn't hearsay - which actually Conan I thought was something that you did not hear yourself but were told was said.  This is clearly not hearsay as I would be reporting what the lawyer said to me directly.
If you provided a written document then it is confirmation, however if you include something that you claim was said and it cannot be substantiated in the letter from your lawyer then it is hearsay. Hearsay is unproved conversation or statement whether to you or whether repeated to you.
larrisap said
 However what I don't understand is that providing what the lawyer said would support my case not harm it and so I don't see what would be wrong in waiving my legal professional privilege.  I only consulted this lawyer three times and received written advice only once.
What your lawyer may have said does not prove or support your case, it is one opinion about your case. What in essence you are proving is that you sought legal advice and acted in good faith upon that advice.
Conan said
You wrote earlier above that you received verbal and not written advice, now you say "I chose to ask for written advice", which is it please?
It is both.
1. I went to see the lawyer who gave me advice verbally 18 months ago
2. I wrote to him 3 weeks ago asking for written confirmation of his previous verbal advice so I could include it in my affidavit.

I didn't intend to use what my laywer said to 'prove' my case. I intended to use it to show that a) I had sought advice and b) that the advice was different from what my ex was told and yes c) that I acted in good faith on that advice.

As reasonable excuse in a contravention case you can use that you did not understand what you had to do under the order.  If I have been told by a lawyer that  I wasn't contravening and that my ex was then that could be seen as me not understanding my obligation under the order - ie the orders are not clear enough if one lawyer thinks one thing and another thinks the opposite from the same set of orders.  I acted on the advice I was given.

By getting written confirmation or including the letter he sent me after my second visit (which was on a slightly different angle and does not verify what I was told on the first visit, it verifies something different) it would mean that it is not hearsay but something I can substantiate. 

Conan said
if you include something that you claim was said and it cannot be substantiated in the letter from your lawyer then it is hearsay
If the lawyer had confirmed in writing what he had told me verbally then it would not be hearsay.  (however he has written to me that he doesn't want to do that because of the legal professional privilige and he thinks it would disadvantage me which is what started this whole topic!)

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larrisap said
 1. I went to see the lawyer who gave me advice verbally 18 months ago
2. I wrote to him 3 weeks ago asking for written confirmation of his previous verbal advice so I could include it in my affidavit.
Confirmation of verbal advice written 18 months later, how do you think that would stand up in Court?
larrisap said
 As reasonable excuse in a contravention case you can use that you did not understand what you had to do under the order.  
This is not totally correct, this would only be reasonable if the orders were open to different interpretations. If the orders are not subject to different interpretations then saying you did not understand is not reasonable.
larrisap said
 By getting written confirmation or including the letter he sent me after my second visit (which was on a slightly different angle and does not verify what I was told on the first visit, it verifies something different) it would mean that it is not hearsay but something I can substantiate.  
You are writing in circles. Slightly different angle? Why substantiate something that does not verify what you were told on the first visit. I think you are confused about hearsay evidence and perhaps even how to present it. Example I consulted Joe Blow lawyer about my case….. and was given to understand that etc….  I consulted Joe Blow lawyer about my case and he said words to the effect…… One is generic and not really subject to challenge, the second subject to challenge unless Joe Blow actually detailed his conversation with you.
larrisap said
 If the lawyer had confirmed in writing what he had told me verbally then it would not be hearsay.  (however he has written to me that he doesn't want to do that because of the legal professional privilige and he thinks it would disadvantage me which is what started this whole topic!)
Again you are confused with hearsay. If you wrote about a conversation He said/She said only the parts directly referenced and confirmed in his letter would not be hearsay. Like FMs tend to hint and point in various directions I would wonder why he is saying it would be a disadvantage to you and what he is really trying to say.
Conan said
Confirmation of verbal advice written 18 months later, how do you think that would stand up in Court?
It will stand up completely because the alleged contravention occured 18 months ago and the advice was received at the time the 'negotiations' about the contravention were occuring.  If you can't use evidence from 18 months earlier then there is no case to hear.

Conan said
 this would only be reasonable if the orders were open to different interpretations
Conan, that is my whole point.  The orders are obviously open to different intepretations as one lawyer said one thing and the other said something else. (and in fact I have a letter from his barrister saying that the orders are ambigious and need to be revisited to take the ambiguities out!)

Conan said
Slightly different angle? Why substantiate something that does not verify what you were told on the first visit. I
I am only appearing to write in circles because you don't know the circumstances or what was said.  It would take some of my 11 page affidavit to clarify my point and I don't think that would be to anyone's benefit and I don't wish to do so on a publlic forum.  Suffice to say, it was a different angle because the ex tried to get round the orders by suggesting a different arrangement to that initially proposed.  I sought advice on this different arrangement and in advising me on that there are some sentences that confirm what was originally said about the first arrangement.  I don't expect you to understand what I am talking about from this cryptic explanation however there would be no point me asking advice on something that didn't make sense to me!

I agree that I may not quite understand hearsay because  I did think it was only related to third parties.  So thank you for your advice on that, I will spend some more time researching hearsay - allthough in terms of my evidence and case, there isn't much that I am relying on that was said without evidence as I only communicate by email and text with my ex so can substantiate everything between us. 

I am not sure what the lawyer is really trying to say but the rest of his letter was really helpful and has given me some tips on how to cross examine my ex and some matters to raise.  So I don't think he is hinting anything, just trying to protect me.  He also doesn't know what other advice I may have received from other lawyers (which I didn't - he was the only one apart from helplines).

God grant me the serenity to accept the things I cannot change, courage to change the things I can and the wisdom to know the difference.
larrisap said
 It will stand up completely because the alleged contravention occured 18 months ago and the advice was received at the time the 'negotiations' about the contravention were occuring.  If you can't use evidence from 18 months earlier then there is no case to hear.
The point I am making is simply that you are asking someone to confirm a conversation that occurred 18 month earlier. Unless the conversation was recorded or shorthanded how can someone expect to remember exactly the full content of the conversation.
larrisap said
 I am only appearing to write in circles because you don't know the circumstances or what was said.  It would take some of my 11 page affidavit to clarify my point and I don't think that would be to anyone's benefit and I don't wish to do so on a publlic forum.  Suffice to say, it was a different angle because the ex tried to get round the orders by suggesting a different arrangement to that initially proposed.  I sought advice on this different arrangement and in advising me on that there are some sentences that confirm what was originally said about the first arrangement.  I don't expect you to understand what I am talking about from this cryptic explanation however there would be no point me asking advice on something that didn't make sense to me!
You are right it is cryptic, like trying to figure out a jigsaw without a picture of the finished article.
larrisap said
 I agree that I may not quite understand hearsay because  I did think it was only related to third parties.  So thank you for your advice on that, I will spend some more time researching hearsay - allthough in terms of my evidence and case, there isn't much that I am relying on that was said without evidence as I only communicate by email and text with my ex so can substantiate everything between us.  
Hearsay and Opinion rules for the Family Courts are somewhat different from other Courts
larrisap said
 I am not sure what the lawyer is really trying to say but the rest of his letter was really helpful and has given me some tips on how to cross examine my ex and some matters to raise.  So I don't think he is hinting anything, just trying to protect me.  He also doesn't know what other advice I may have received from other lawyers (which I didn't - he was the only one apart from helplines).
If he is saying that you are waiving privilege then he probably does not want the other side to read that material and the only reasonable explanation is that it would not be in your interest.
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