Hiding behind Privilege?

In a topic discussion regarding the discovery process & legal professional privilege, I learned of a case involving Clayton Utz and various other big tobacco companies.

In 2002 Rolph McCabe became the first Australian to win a case against a tobacco company - in this case, British American Tobacco Australiasia (BATA), and his widow Mrs McCabe was awarded damages of $700,000. Justice Eames ruled that BATA had acted in a manner which denied Mrs McCabe a fair trial - that BATA and their solicitor, Clayton Utz, had subverted the process of discovery to prevent a fair trial by destroying thousands of documents, misleading the court as to what had become of material BATA claimed it could not find, and 'warehousing documents.' BATA appealed this decision and it was overturned. However, Victoria's (former) Director of Public Prosecutions wrote to the Attorney General and the ACC regarding BATA and the lawyers involved in the case.

The discussion revolved around a statement in textbook (Calbran & Co) "There are also priniciples and relationship which are so important that the law must protect them, even it means relevant information is not made available to all parties and the courts."

In my opinion, however, the legal professional privilege has been abused to distort the important process of discovery. Interestingly, reading a couple of articles on the topic of legal professional privilege I have found a few critics of the concept altogether!

Jeremy Bentham wrote: "Disclosure of all legally-operative facts, facts investitive or divestitive of right, of all facts on which right depends, such, without any exception, ought to be, such, with a few inconsistent exceptions, actually is, the object of the law. … If falsehood is not favoured by the law, why should concealment? … Expect the lawyer to be serious in his endeavours to extirpate the breed of dishonest litigants! expect the fox-hunter first to be serious in his wishes to extirpate the breed of foxes."

Perhaps it is because I am a budding-lawyer, but professional legal privilege is almost a sacred principle; that your communications (if they fall within the appropriate category) with a client concerning legal advice or impending litigation should be confidential! Whilst I think that there are good criticisms to be made when looking at how the privilege operates (as seen above), there are also many benefits. At the end of the day there is a competing agenda between wanting as much information/evidence as possible for justice and the public interest to be served, and on the other hand protecting confidential communications between a lawyer and his or her client.