LEGAL ADVICE PRIVILEGE:

LOSS OF CONFIDENTIALITY KILLS IT!

By A L R Joseph

Introduction

It is trite law that communications between solicitors and their clients are privileged and, therefore, are inadmissible in evidence in any proceeding. Such privilege is known as legal professional privilege (or legal advice privilege).

The privilege extends to communications between a solicitor and his client which have the purpose of seeking or giving legal advice and communications between a solicitor and third parties or between the client and third parties which are made for the purposes of existing or contemplated legal proceedings.

The justification for the privilege has always been that it ensures a fair trial. Zuckerman put it thus:

Legal professional privilege is now well established and governed by fairly clear rules. It is not necessary for the present purposes to examine these rules, except to remark on the relation between this privilege and the principle of access to evidence. This privilege... exists, broadly speaking, in order to enable a party to legal proceedings to prepare his case adequately and to facilitate uninhibited access to legal advice. In an adversary system free and uninhibited access to professional legal advice is an essential corollary of the right to just and equal trial. In this sense both this privilege and the principle of access to evidence have the same basic goal: promoting the efficacy of the legal procedure as a means of just determination of disputes. The conflict between the privilege and the principle is, therefore, confined within the basic goal of equal and just trial... Since the conflict... takes place within the confines of the administration of justice, a correct compromise of the conflict will promote the ends of the administration of justice rather than detract from them. It may be doubted whether the balance was correctly struck when extending legal professional privilege to communications made to the legal adviser for the purpose of obtaining advice on matters unconnected with pending or contemplated litigation, but the most recent trend in relation to this privilege is more cautious.

Whose Privilege Is It?

It is equally well-established that the privilege is that of the client (and in some cases third parties) and not the legal adviser. As Lord Buckmasters said in Minter (Pauper) v Priest:

the right to have such communications so protected is the right of the client only. In this sense it is a privilege, the privilege of the client. If the client chooses to withdraw the veil, the law interposes no further difficulty. The communications are then available as evidence.

In other words, the client (or a third party to whom such privilege accrues) can waive the privilege, provided he has the authority to do so.

Under What Circumstances Does Privilege Attach?

In Three Rivers District Council v Bank of England, (a case in which the House of Lords extensively reviewed the whole law in this area) Lord Scott of Foscote said:

legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication is an essential requirement.'

This makes plain that, at common law, not all communications passing between solicitors and clients are protected, only those which are confidential communications.

Section 126 of Evidence Act 1950

Section 126 of the Evidence Act 1950 provides that no . advocate shall at any time be permitted, unless with his clients 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

It is noticeable that section 126 does not employ the word confidential. Therefore, on the face of it, section 126 appears to protect all communications between clients and their legal advisers.

See Teow Chuan v Dato Anthony See Teow Guan

The Court of Appeal in the recent case of See Teow Chuan Case was faced with three questions:

Does Malaysian evidence law, pursuant to the Evidence Act 1950, extend protection under legal advice privilege to all communications between solicitors and clients or only (as with the common law) to confidential communications?

Can a client implicitly by conduct waive legal advice privilege?

Assuming a communication between a solicitor and his client is prima facie privileged, would the exhibiting of that communication in court documents in the process of litigation, thereby necessarily coming into possession of the opposite party and being filed on record, tantamount to a waiver?

Only Confidential Communications: The Law

The Court of Appeal in the See Teow Chuan Case, in respect of the first question, cited with approval the judgment in Emperor v Mariane G Rodrigues, where the court held that section 126 had no application where the statement made by a client to his solicitor is not made as confidential. The court in Emperor v Mariane G Rodrigues held:

The ground upon which the conviction of the appellant is complained of as illegal is that the statements having been made to the solicitor by the appellant as the solicitors client were privileged under section 126 of the Evidence Act and that they could not be made the subject of a criminal charge. Section 126 of the Evidence Act, however, can have no application where the statement made by a client to his solicitor was made not as confidential but for the purposes of communication. Here the statements complained of as defamatory were obviously made not under the condition of secrecy and as a matter of fact they were communicated to the complainant by the solicitor because the solicitor had instructions to make them to the complainant. There was, therefore, nothing of the character of confidential communications in them to bring them within the rule in section 126 of the Evidence Act. (emphasis the Court of Appeals)

The Court of Appeal held in answer to the first question as follows:

In our judgment it is settled law that where the communications with [a] solicitor is not intended to be confidential, the privilege under section 126 of the Act will not apply. This is clearly established in Emperor v Mariane G Rodrigues which deals with section 126 We therefore hold that it is settled law that the element of confidentiality is an essential requirement in section 126.

See Teow Chuan Case: The Facts

In the See Teow Chuan Case, the defendant, the executive director of a company (Company), was asked to provide a legal opinion by the non-executive chairman of the Company relating to certain allegations made against the plaintiffs involving the operation of the Company. The defendant instructed the solicitor, without the benefit of any resolution of the Company. The defendant testified that it was clear that the legal opinion would be circulated to a number of directors of the Company.

As far as the solicitor was concerned - she was instructed by the defendant in his capacity as the director of the Company - her client throughout was the Company. The written legal opinion was not marked private and confidential and was faxed to the defendant. Eventually, the legal opinion was circulated to a number of people, some directors of the company and others members of the Companys audit committee and also to the plaintiffs.

See Teow Chuan Case: The Judgment

In the context of the above backdrop, the Court of Appeal observed:

We have taken pains to set out the chronology and sequence of events and facts in order to appreciate the factual matrix of this case. From the fact pattern it is very clear to us that the communications between the defendant and the solicitor was not intended to be confidential. Both the defendant and the solicitor knew in advance that the legal opinion would be circulated and published to the [Companys] Board and Audit Committee members including the plaintiffs and the external auditors of [the Company]. The defendant caused the publication of the legal opinion to the external auditors in the knowledge that the auditors will furnish the legal opinion to the plaintiffs and those present at the [various meetings]. It was the natural and probable consequence of the defendants publication of the legal opinion. There was no element of secrecy or confidentiality when [the legal opinion was] distributed and published

Moreover, the Court of Appeal observed that even if a communication at its inception is confidential, that confidentiality is [a] characteristic [that] can be lost.

Was There Express Waiver of Privilege?

The Court of Appeal was of the view that the moment the defendant had published the legal opinion to a host of other persons, it constituted an express consent and waiver of privilege. The Court held that the conduct of the defendant in expressly waiving the privilege by disclosing and publishing the legal opinion to third parties is illustrative of the principle of express waiver.

It was fatal to the defendants argument, said the Court, that the legal opinion was privileged, when the plaintiffs were given copies of the legal opinion. The plaintiffs never requested for the legal opinion. They did not obtain the legal opinion by any devious means or by theft.

Accordingly, the Court of Appeal concluded thus:

In our judgment the facts of this case clearly demonstrate that the communications between the defendant and the solicitor was (sic) not intended to be confidential. In all the circumstances of the case and for the grounds given above we hold that the defendant had waived the confidentiality and the privilege attached to the legal opinion We hold that in this case on the facts the communications between the defendant and the solicitor is not protected by privilege under section 126 of the Evidence Act 1950.

Does The Disclosure Of Privileged Material In Interlocutory Proceedings Amount To A Waiver?

As it happened, in the See Teow Chuan Case the legal opinion was exhibited as an exhibit to the plaintiffs affidavit in reply to the defendants interlocutory application for striking out and was read by all parties at the striking out proceedings in the registrars chambers and in open court at the trial. Relying on the judgment of the Supreme Court in Jaafar bin Shaari v Tan Lip Eng and the Court of Appeal (Eng) in Derby & Co Ltd v Weldon,[ the Court of Appeal held that as the legal opinion was exhibited in the affidavit and deployed in court in the striking out [interlocutory] application by the defendant and was also read out in open court by counsel for both parties the privilege was clearly waived altogether.

Conclusion

At the outset it was stated that Court of Appeal in the See Teow Chuan Case was faced with 3 questions as follows:

Does Malaysian evidence law, pursuant to the Evidence Act 1950, extend protection under legal advice privilege to all communications between solicitors and clients or only (as with the common law) to confidential communications?;

Can a client implicitly by conduct waive legal advice privilege? and

Assuming a communication between a solicitor and his client is prima facie privileged, would the exhibiting of that communication in interlocutory court documents in the process of litigation, thereby necessarily coming into possession of the opposite party and being filed on record, tantamount to a waiver?

How did the Court of Appeal answer these questions? It did so as follows:

Malaysian evidence law, pursuant to the Evidence Act 1950, extends protection under legal advice privilege only to confidential communications between solicitors and clients (as is the case at common law).

A client could by conduct (in circumstances which may appear, in the ordinary sense of the word, implicit actually be held to be explicit) waive legal advice privilege, especially where the waiver is alleged to be so on the basis that the client had voluntarily published such potentially privileged communications to others outside a confidentiality setting. In those circumstances, such waiver would be regarded (by the courts) not as an implicit waiver but an express one.

Where privileged materials are disclosed in interlocutory court proceedings in circumstances where all the relevant parties (especially the opposite side) to the proceedings would have had recourse to them, the act of disclosure could amount to a waiver in the appropriate circumstances.