UNDERSTANDING CONFIDENTIALITY AND LEGAL PROFESSIONAL PRIVILEGE
In the process of rendering a proficient legal service, the minds and offices of industry practitioners often become crypts, places harboring the secrets and intricacies of clients that otherwise would have been taken to the grave. While legal professionals require a holistic factual matrix in order to comprehensively respond to a client’s instruction, eliciting such information from a client requires a proverbial carrot – an incentive to disclose all the relevant facts, even if doing so has the potential to paint the client in a negative light. This sentiment was crisply summed up in the English case of Balabel and Another v Air India where the Court noted “A man must be able to consult his lawyer in confidence since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.”
From this starting point, one can consider what is meant by confidentiality and legal professional privilege.
Legal practitioners have a contractual duty of confidentiality which obliges them not to reveal or use information bestowed upon them by their client. This duty arises from the contract of mandate between the legal practitioner and the client as well as from the fiduciary relationship that exists between them. The concept of confidentiality is, however, a broad one and one that exists in many professional environments. It is also uncommon for contracting parties in other contexts to include a ‘confidentiality clause’ which requires the parties to the contract to keep the content of the agreement to themselves.
On the other hand, legal professional privilege is a doctrine unique to the legal sphere. It is a substantive rule of law which allows a client to prevent his legal representative from disclosing certain communications to third parties. It is fundamental in ensuring the proper functioning of the legal system.
Legal professional privilege can be notionally divided into litigation privilege and legal advice privilege. Legal advice privilege relates to communications between a lawyer and client whereby legal advice is given or is sought. Litigation privilege pertains to any advice given in contemplation of litigation. There are, however, principles applicable to both types of legal privilege:
1. The legal privilege belongs to the client and not the legal practitioner. It therefore the client who must claim the privilege and the client who can waive this right.
2. In order for legal professional privilege to be claimed the legal advisor must have been acting in a professional capacity and have been consulted by the client in confidence. The effect of this is that casual chats between a legal advisor and client in a social setting is may not be protected as legally privileged.
3. The communication between the legal advisor and client must have been for the purpose of obtaining legal advice.
While a powerful concept that aides the wheels of justice to remain in motion, legal professional privilege is not absolute. Communications which pertain to the facilitation of the commission of a crime or fraud are not protected as privileged communications. That is to say that privilege can only operate within ambit of legality. Furthermore, legislation or public interest can pierce the shield of legal privilege. For example, section 46 of the Promotion of Access to Information Act 2 of 2000 requires public entities to disclose information, regardless of privilege, in the event that such disclosure would bring to light “evidence of substantial contravention or a failure to comply with the law” or “an imminent and serious threat to safety or environmental risk […] where public interest in the disclosure clearly outweighs the harm [of overriding the privilege]”.
The relationship between legal practitioner and client is a unique one and one which is protected by both the practitioner’s duty of confidentiality and the client’s right to legal professional privilege. It is useful to understand these concepts as they remain important aspects of any legal matter in which you may find yourself.
Written by: Daniel Prevost (Candidate Attorney)
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).