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Public Interest and Privilege in the Relationship Between Lawyers and Clients

The adversarial nature of the administration of justice has of necessity engrafted the lawyer as an important participant in it. The lawyer is like a sphinx-a mysterious phenomenon with a woman’s head and a lion’s body. As “an officer of the Court”, the lawyer is expected to present the client’s case before a Judge in the innocence, elegance and forthrightness of a woman. He is to assist the court in ensuring that justice is done by not withholding any admissible evidence or applicable enactment or precedent. In presenting the facts and law, he must deliberately promote all methods and secure all compliances that would accelerate the hearing and determination of the case before the court.[1]

However, the lawyer in addition to this public duty also owes a “private duty” to his client ‘to devote his attention, energy and expertise to the service of his client and, subject to any rule of law, to act in a manner consistent with the best interest of the client’.[2] In the performance of this duty, the lawyer is like the lion, ferociously sifting through the oral and documentary evidence availed him by his client in order to eliminate potentially harmful, though useful evidence and endeavoring to ensure that any enactment against the interest of his client is set aside and any binding precedent overruled. At this point, it matters not that the evidence may be useful to the opposing party. The lawyer’s task is to secure victory for his client and in the process jettison any superfluous though useful evidence.

The natural response to this dual role sitting in the same person is to perceive him as a repository of conflicting correlatives. In truth, that is the mystery called the lawyer- promoting the end of justice by the very means that appear to undermine it. In that essential area of admissibility of evidence, the vital tool by which a lawyer conflates these conflicts is the principle of privilege.

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