How Is The Client-Lawyer Relationship Kept Confidential?
What is Legal Professional Privilege?
There are many instances in which you might consult a legal professional for assistance, for e.g. drafting wills or drafting business documents, or regarding any legal issues. For these purposes, confidentiality is crucial.
Is there a legal concept or mechanism which automatically arises to protect the confidentiality of such communications? Yes, in Singapore, we have the concept of privilege. Privilege allows you to refuse the production of certain types of evidence to other persons or in court.
This article will discuss:
What are the Types of Legal Professional Privilege in Singapore?
In Singapore, there are two forms of legal professional privilege:
1. Legal advice privilege
Legal advice privilege protects the confidentiality of all communications for the purpose of giving or obtaining legal advice regardless of whether the matter might proceed to court proceedings. This means all communication between yourself and your legal professional, including any document which this legal professional becomes acquainted with for your case, is confidential.
You also cannot be compelled to disclose your confidential communications with the legal professional. Section 131 of the Evidence Act gives you the right to withhold the disclosure of communications obtained from your legal professional. An example of an advice which you might want to have legal advice privilege over would be one relating to a potential merger or takeover, as such advice may contain confidential information relating to your business, for e.g., your trade secrets.
Legal advice privilege has its basis in the Evidence Act. We will discuss later the types of “legal professionals” covered under this concept.
2. Litigation privilege
Litigation privilege protects the confidentiality of all communications for the purpose of potential or existing court proceedings, even if these are not between your legal professional and yourself.
An example of a communication which does not involve yourself could be an expert opinion obtained from an expert witness in ongoing court proceedings. An expert witness is a person with scientific, technical or other specialised knowledge based on training, study or experience. Common expert witnesses include doctors, who would understandably be summoned as witnesses for medical analysis or issues, and accounting experts again for accounting issues.
For a more detailed discussion, please refer to our article on the role of expert witnesses in Singapore.
In a way, litigation privilege overlaps with legal advice privilege when it concerns communications between yourself and your legal professional regarding litigation. Both types of privilege will apply to protect such communications.
Who Falls Under the Definition of a “Legal Professional”?
The concept of legal advice privilege has its basis in the Evidence Act. The Evidence Act provides that the following groups of persons are considered “legal professionals” so as to attract privilege for communications with them:
- Advocates and solicitors – lawyers qualified in Singapore. Note also that the Professional Conduct Rules mandate that a lawyer must not knowingly disclose any information confidential to his client or acquired by the lawyer in the course of their engagement. Foreign-qualified lawyers are also included, but only if they work in a Singapore law practice.
- In-house counsel – if the legal counsel is employed by one company out of a group of related companies, then the legal counsel would be treated as though he or she was also employed by these related companies;
- Interpreters and other legally-trained persons like paralegals and trainee lawyers, who work under the supervision of legal professionals. Advice rendered by non-legal professionals, even if legal in nature, would not qualify for legal advice privilege; and
- Singapore registered patent agents, and Singapore registered foreign patent agents.
When Does Legal Professional Privilege Apply?
Communications in all forms may enjoy privilege. Such communications may cover electronic documents or records of calls. Privilege also extends to documents created for a privileged purpose, even if these documents have not been conveyed, for example, internal drafts or draft advice or reports pending to be sent to the client.
Legal advice privilege
For legal advice privilege to apply, the communication:
- Must be confidential – communications made available to the general public lose confidentiality;
- Must be between yourself and the legal professional – your authorised agent would qualify but this agent must act as your extension. Also, the legal professional must be acting in a professional capacity. An in-house counsel acting as a corporate secretary would not qualify;
- Must be for the purpose of obtaining legal advice – the Singapore Court of Appeal has decided that this may be a crucial factor in deciding if communications from third parties may enjoy legal advice privilege. In that case, both accounting and legal advice were sought to report on a fraud issue. The question was whether the accounting advice was protected by legal advice privilege. The decision suggested that if you had commissioned a third party to produce a report through your legal professional, then this third party communication might be protected by legal professional privilege.
For litigation privilege to apply, the communication must be for the dominant, not sole, purpose of litigation. A communication created by way of routine, for e.g. Statements of Accounts or Financial Reports especially at the end of a financial year, may fail the dominant purpose of litigation criteria.
Also, there need not be ongoing litigation; a reasonable prospect of litigation would suffice.
Can You Lose or Waive Legal Advice Privilege?
You can decide to waive legal professional privilege. This means you give consent for the communication to be published or produced in court proceedings.
You might also be deemed to have waived privilege, if say, you are a witness and refer to the communication while giving evidence, and the court then directs for that communication to be produced to support your evidence. Exceptions include:
- Disclosure for a limited purpose (confidentiality is still mandated), e.g. disclosure only for court discovery;
- Disclosure to specific persons only (privilege may still be asserted against other persons); or
- Disclosure by mistake (but only if the communication has not yet entered the public domain).
Finally, privilege does not apply if the communications relate to the commission of illegal or criminal activities. In addition, previously unprivileged documents cannot become privileged just because these are sent to a qualified legal professional. An example cited in a Singapore High Court case involved a Committee of Inquiry report sent to the in-house counsel. The report was simply sent to the in-house counsel as a reference document and not for the purpose of seeking legal advice.
The concept of legal professional privilege provides assurance that all communications between yourself and your legal professional would be kept confidential. Whether privilege applies is largely a fact-finding exercise.
To avoid ambiguity as much as possible, however, you should take steps to ensure the confidentiality of important communications. Try not to forward communications with your legal professional to other persons, but if you need to, require an acknowledgement of confidentiality. Mark all communications appropriately, i.e. “privileged”, “for the purpose of legal advice”, “for intended litigation” etc. As much as possible, manage third parties communications through your legal professional.
If you require further advice on any legal issues or matters, feel free to approach our recommended panel of legal professionals.
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