Did you know that any information, document, or communication shared between you and your lawyer during legal consultation is protected by law under ‘legal professional privilege’? This privilege ensures that sensitive discussion between lawyer and client remains confidential and fostering open and honest communication.
It is well settled that communication between a lawyer and his clients are privileged. This is known as ‘legal profession privilege’. In Winterthur Swiss Insurance Company and another v AG (Manchester) Ltd (in liq) and others [2006] All ER (D) 196 (Apr), Aikens J held –
““Legal professional privilege”, which is often referred to simply as “privilege”, is recognised as a fundamental human right granted by the common law.21 The right is given to citizens or other legal entities that obtain legal advice from a lawyer. In B v Auckland District Law Society22 Lord Millen described “privilege” as “a right to resist the compulsory disclosure of information”. The corollary of this right of the client is the duty of the lawyer to keep confidential and not to disclose to others information that is covered by legal professional privilege.”
In Dato’ Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ 445 (“Dato’ Au Ba Chi”), the High Court held at page 447 –
“As regards professional communications, the rule is now well settled that where a barrister or solicitor is professionally employed by a client, all communication which passes between them in the course and for the purpose of that employment are so far privileged, that the legal adviser, when called as a witness, cannot be permitted to disclose them whether they be in the form of title deeds, wills, documents, or other papers delivered, or statements made, to him, or of letters, entries, or statements, written or made by him in that capacity, and this even though third persons were present. (See Sarkar on Evidence (10th Ed) p 1080.)”
The relevant provisions under the Evidence Act 1950 (“EA 1950”) relating to legal professional privilege are as follows –
(a) Section 126
“126. Professional communications
(1) No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.
(2) It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client.
Explanation—The obligation stated in this section continues after the employment has ceased.”
(b) Section 128
“128. Privilege not waived by volunteering evidence
If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.”
(c) Section 129
“129. Confidential communications with legal advisers
No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.”
To put it simply, there are 3 things (under Section 126 of EA 1950) which are privileged –
- communication between the lawyer and the client;
- documents given by the client to the lawyer; and
- legal advice given by the advocate to the client in the course of his retainer.
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions or require further information on this matter, please do not hesitate to contact us directly.