The Professional Secret, Confidentiality and Legal Profession ...

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be confidential is to mark it "Without Prejudice". But
the words "Without prejudice" are not magical and dq not
automatically confer privilege; and a letter may be
privileged even if it is not marked "Without Prejudice".
Some solicitors put the words "Without Prejudice" on almost
every letter they write, but they cannot create privilege
where the nature of the communication does not justify it.
Similarly, if a letter is clearly intended to be confidential,
the fact that it is not marked "Without Prejudice" is not fatal
and the letter may be privileged. Letters marked "Without
Prejudice" may be used as evidence of a concluded agreement,
as on the continent.
37. Privilege is conferred solely for the benefit of the client
concerned (although the rule exists to protect all client~.
If the client makes an unfounded allegation against his
lawyer, which the lawyer cannot answer without reference
to privileged communications, then the client is held to
have waived the privilege.
38. By similar reasoning, privilege does not protect communications
made for a fraudulent or illegal purpose. Privilege exists
to protect the confidential relationship between the client
and his legal adviser in that capacity. A lawyer qua lawyer
cannot assist a client to commit a fraud or crime.
39. Privilege may be overridden by statute, and this has happened,
particularly in recent tax legislation.l The solicitor in
the UK and Ireland acts, not only as legal adviser and advocate,
but also in many matters as agent for his client. As a result,
the solicitor may be the only person in possession of information
relevant to his client's tax liability. Recent fiscal
legislation therefore requires the solicitor to disclose such
information. /
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