The Professional Secret, Confidentiality and Legal Profession ...

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companies ('juristes d'entreprise'), foreign lawyers and their
assistants and 'stagiaires,.l The question in each case is
whether the communication was made to or by a lawyer in his
professional capacity as a legal adviser or advocate.
1. Salaried lawyers in the employment of
government departments and commercial
companies are barristers, advocates or
solicitors. They remain members of the
same profession as those in private
practice, although they may not practise
at the Bar. Scots law and Irish law
have not yet gone as far as English law
in protecting communications to and by
salaried lawyers. For the law of England
see A. Crompton Amusement Machines -v­
Customs & Excise Commissioners, [1974]
A.C. 405.
33. For the same reason, it is not necessary that a formal legal
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relationship should have been created between lawyer and client
in order that a communication should become privileged. Ha
man goes to a solicitor qua solicitor and tells him his story,
that communication is privileged, even if the solicitor then
refuses to act for him.l So too, the communication remains
privileged after the death of the client or of the lawyer, or
after the formal relationship of lawyer and client has come to
an end. Similarly, where a lawyer is preparing a client's case,
and communicates with third parties for that purpose, the
communications between the lawyer and those third parties
are privileged.2 Again, the court will look at the de facto
relationship which existed when the communication was made.
1. Not so in Scotland, see Davie,188l, 4 Coup.450.
2. Scots law distinguishes more sharply than
English law between communications ante
litem motam and post litem motam.