Loose Lips Sink Privilege – Profile Of Legal Professional Privilege And Spiritual Connotations

WE LIVE IN A WORLD of “all or nothing” at times, don’t we? For instance, the legal world operates this way around the subject of legal professional privilege (LPP)-the right to seek legal opinion to protect information, and the advice sought. But, there’s a catch…

Give a little away, and you give the lot away.

The problem is LPP can be waived. This ‘privilege’ can, in other words, be given up. Waiving LPP by disclosing information (even only a little information) is quite a foolish business or personal practice, and is often only recognised in hindsight.

To illustrate the matter, the Australian Wheat Board (AWB), in its dealings in Iraq, appears to have made important information, which could have been subject to LPP at a later date, available for subpoena by the Federal Court; all because it divulged the ‘gist’ of its findings and advice to the Commonwealth Government and the Independent Inquiry Committee of the United Nations (IIC) after commissioning its own internal inquiry into the scandal in 2003.[1]

Contrary to the many who might think the law is an ass, it seems to me that the law is a complex system set up on the ‘rules’ of wisdom, rules that can often appear invisible until it is “too late”–without the crucial benefit of 20/20 hindsight.

The core of the matter seems to be around comments made relating to courses of action that may or may not be taken from the legal advice that is given. Commenting that a particular course of action is taken because of advice would threaten LPP; the protection of the information. The general message is, “The less said, the better LPP is protected.” Government personnel seeking legal advice are often referred to the State Solicitor’s Office, so LPP can be protected. It is almost a case of “‘getting advice’ before getting advice.”

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In the biblical wisdom of Proverbs, King Solomon is attributed for saying words to the effect, “All who act prudently protect knowledge, but fools expose their folly.”[2]

Further again, Proverbs 14:8a says, “The Wisdom of the prudent is to give thought to their ways.” And at risk of overstating the point, we find written again in Proverbs 12:23, “The prudent keep their knowledge to themselves, but a fool’s heart blurts out folly.”[3]

The central message seems to be that we can act in one of two ways[4] when it comes to knowledge. We can either act in consideration of known factors, and more importantly, in consideration of possible unknown factors, or we can simply exercise some level of blind (bad) faith, which implicitly is not qualified in knowledge[5] but may be supported in some other level of ‘truth’-for instance, one’s (often) skewed perception. This would be risky, and by definition, “foolish.” This behaviour is the direct opposite of diligence. In legal terms, we cannot afford anything else but a complete commitment to diligence.

Giving ‘thought to one’s ways’ implies a humble honesty[6] and a healthy guarding, and respect, of the truth, or at least one’s view of the truth i.e. perception. In other words, it is acknowledging that one’s perception is often skewed, even slightly. In response, it is prudent to give thought to one’s ways-not doing so is dangerous. Accounting for a skewed perception, wise advisers are crucial i.e. advice.

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Perhaps the illustration of LPP is really about having foresight of potential consequences; of future outcomes. Isn’t foresight inherent in wisdom?

So, what is the general message here for us? We might not all be in the position to need or require LPP in our daily affairs, however, we will often assert a particular position out of a lack of prudence, and that can have damaging consequences within a familial or business context. We must learn to respect knowledge and the power of information, guarding truth tightly and thereby protecting relationships and therefore life.

Perhaps one further Proverb would be an appropriate place to finish: “The prudent see danger and take refuge, but the simple keep going and pay the penalty.”[7]

© Steve J. Wickham, 2008. All rights reserved Worldwide.

[1] R. King, “Loose lips sink privilege” in Government Risk Management (Vol. 8, Iss. 15, August 2007) p. 8-9.

[2] See Proverbs 13:16 in the Today’s New International Version. The actual rendering in the TNIV is, “All who are prudent act with knowledge…”

[3] Both 14:8a and 12:23 are from the TNIV.

[4] P.E. Koptak, NIV Application Commentary: Proverbs (Zondervan, Grand Rapids, Michigan, 2003), pp. 343, 360, 375.

[5] The distinction here is “knowledge” means something that is actually true.

[6] Koptak Ibid., 340-43.

[7] Proverbs 22:3 TNIV.

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by Steve Wickham