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CONFIDENTIALITY

Doctrine of Confidence & Legal Privilege

 Fundamental ethical duty to keep client affairs confidence


 A&S acts in Client interest; not to profit personally from client information
 Client may waive expressly / impliedly

Common law on confidentiality

 UK Law & Society Guide


 duty to keep confidential to his or her firm the affairs of Client; and
 to ensure that the staff to do the same”

 Rule of evidence
 Neither Solicitor nor Client can be ordered to give evidence in court/ elsewhere on
communication between them/ work done by Solicitor in giving advice/preparing litigation
 Police and Criminal Evidence Act 1984
S.9:
- search warrant shall be cease to have effect so far as it relates to the authorisation
of searches for items subject to legal privilege.
S.10:
- AS & Client (Legal Advice)
- AS & Client/ Client & Third Party (legal proceedings)

Purpose of Law of Confidentiality

Greenough v Gaskell
 Rationale:
promote the conduct of legal business by encouraging the Client to confide unreservedly in his
legal adviser

Re Lee Wah Cane


 privilege of confidentiality is intended for the protection of the Client and not for the protection
of the A&S himself

 Rationale:
a. facilitate access to legal advice
b. facilitate the trial preparation of a case by securing to the Solicitor a zone of privacy
c. duty of confidentially which a Solicitor owes to his Client
Background of privilege

A. It is to protect the Client but not solicitor

Re Le Wah Cane
 Receiver take over board of directors of client, their demand equal to client’s demand
 Solicitor obliged to uplift the privilege and surrender document to receivers

B. It extends to all communication received and advice given arising from Solicitor & Client
relationship and include documents from third party

If you are common Solicitor for both parties, all communication received would be protected for
both Clients. You cannot separate the information received as privileged to one and not the other.

C. Certain matter in which document received not protected by privilege

1. Document a product of criminal act eg. forgery


2. Document used for obtaining expert opinion as directed by the Court

 R v King
 The rule of evidence that legal professional privileges attaches to confidential
communications between a Solicitor and an expert but not to the expert opinion or the
chattels or documents on which he has based his opinion applies to criminal as well as
civil proceedings.

LEGAL PRIVILEGE IN MALAYSIA

S.126 (1) Unless with his client’s express consent, an A&S shall not
 disclose any communication made to him;
 state the contents or condition of any document;
 disclose advices given by him
in the course and for the purpose of his professional employment.

Proviso (a): communication made in furtherance of any illegal purpose

Illustration (a)
 Defence of man committed an offence is not criminal purpose.

R v Centre Criminal Court ex parte Francis


 Document to be used to further a criminal purpose were not subject to legal
privilege
Illustration (b)
 Made in furtherance of a criminal purpose, thus is not protected from disclosure.

Re Detention of Leonard Teoh Hooi Leong


 Privilege protect legitimate communication, whether oral or written passing
directly between A&S and his client.
 Privilege does not extend to communication made in furtherance of a criminal
purpose.

R v Cox & Railton


 Item held with intention of furthering a criminal purpose not privileged.

Proviso (b): showing that any crime or fraud has been committed since the
commencement of his employment.

Illustration (c)
 Crime/ fraud committed after employment does not entitled legal privilege.

Explanation – The obligation stated in this section continues after the employment
has ceased.

Norton v Lord Ashburtonn


 Duty of confidentiality continues although the relationship ended.
 Thus, content of will drafted by solicitor remain confidential until grant of probate.

S.127 Legal privilege applied to interpreters, clerk or servants of A&S.

Norton v Lord Ashburtonn


 Include servants of the A&S

S. 128  gives evidence at his own instance does not means consented to such disclosure;
and
 calls any such advocate as a witness, not deemed to have consented to the disclosure
UNLESS he questions the advocate on matters which he would not be at liberty to
disclose.

S.129  No one shall be compelled to disclose to the court any confidential communication
between him and his legal professional adviser UNLESS
 he offers himself as a witness, and
 he may only be compelled to disclose any such communications necessary to
explain any evidence which he has given to the court.
Ambit of coverage

 S.126(1)
 communication made between A&S and client;
- Oral or writing
 contents or condition of any document which the A&S; and
- conditions refer to nature of the documents, original, duplicate, triplicate; and
also, physical condition legible or in good form or in tatter
 advices given by A&S
- oral or writing
in the course of his professional employment.

1. Protect only confidential communication

Teow Chuan v Dato’ Anthony See Teow Guan


 COA: the element of confidentiality is an essential requirement in section 126

Three Rivers District Council v Bank of England


 Unless the communication or document for which privilege is sought is a confidential
one, there can be no question of legal advice privilege arising

Waiver of privilege

 S.126: “…unless client’s express consent”


 Need not to be in writing (safer)
 Client was asked and agreed to disclose

 Dato Au Ba Chi & Ors v Kok Keng Kheng & Ors


 Privilege belongs to client not solicitor
 He may either
- Expressly consent the disclosure (s.126)
- Impliedly consent the disclosure (s.128: call A&S as witness and question him on
matter he not at liberty to disclose)
DIFFERENCES

UK MALAYSIA
Litigation privilege
S.10(1)(b) PACE 1984 S.126 EA1950
 Communication made in relation to with or  Between A&S and Client only
pending of litigation
 Eg: Expert report PP v Yuvaraj
 Litigation privilege accepted by S.3 of civil
law act 1956 subject to local circumstances

In-House-Counsel
Alfred Crompton’s case  communications of in-house-counsel are
 English Court of Appeal first paved the way not privileged.
for extension of legal advice privilege to
communications with in-house counsel.
 Lord Denning: They [in-house counsel] are
regarded by the law as in every respect in
the same position as those who practise on
their own account. The only difference is
that they act for one client.

S.10 PACE 1984


 Term “legal advisor” is used

AM&S Europe v Commission of the


European Communities
 privilege does not extend to in-house
lawyers in Commission investigations.

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