The Agency That Knew Too Much?: Use of Privileged, Confidential and Inadmissible Information by Regulators and Law Enforcement Agencies With Civil, Administrative and Criminal Powers
Posted: 26 Dec 2018
Date Written: June 30, 2011
Most countries have a number of agencies that seek to regulate and enforce the law. Many of these agencies have powers of civil, administrative and criminal enforcement. When agencies bring matters to court there is inevitably a balancing act between the objective of having all relevant evidence available and protecting other rights such as fairness to the accused, equitable confidences, legal professional and penalty privilege and the privilege against self incrimination. The law also seeks to discourage sharp or at least unlawful practice in the obtaining of evidence. Where confidences or other privileges are enforceable, issues arise in relation to the ability of agencies or lawyers to utilize confidential or privileged information directly or indirectly. There may be a slightly stricter approach to lawyers (certainly when in private practice but also arguably when working in-house for agencies as well) than for other investigative staff but there are also questions about whether the latter too might be enjoined from utilizing confidential information. Chinese walls provide a possible structural solution to some of these problems though courts remain somewhat skeptical about their use in law firms and they appear to be still uncommon in agencies.
Keywords: Law Enforcement, Legal Professional Privilege, Equitable Confidences, Confidential Information
JEL Classification: K14, K41, K42
Suggested Citation: Suggested Citation