This article first appeared in Forum, The Edge Malaysia Weekly on May 20, 2019 - May 26, 2019

Most people are aware of the right to independent legal representation — the right to have access to and be able to consult your own lawyer — as a fundamental cornerstone of our system of justice. Fewer, however, are aware of an equally fundamental doctrine that underpins the right to legal representation — the doctrine of legal professional privilege.

In common law systems such as those of the UK, Australia and Malaysia, legal professional privilege refers to the principle that communications between a professional legal adviser and his or her clients ought to be kept confidential and generally protected from disclosure.

In England, this privilege has been recognised since at least the 16th century and is today firmly ensconced in English law as “a fundamental human right” that cannot be abrogated by statute, except by “express language or necessary implication”. It is also recognised as a fundamental right under the European Charter of Human Rights.

The rationale for legal professional privilege

At first instance, the concept of legal professional privilege may seem somewhat odd to the layman. After all, why should communications between you and your lawyer be exempt from disclosure if there is a chance they might be relevant to the proceedings at hand?

The courts have long recognised, however, that a layperson, with little or no knowledge of the law, would naturally feel hesitant in confiding in his or her lawyer if he or she knew that the lawyer could be compelled to reveal the client’s communications. In such an instance, the client might withhold critical information and the lawyer would not be able to advise the person properly.

As a simple example, a driver accused of recklessly killing a pedestrian at a crossing might not realise that an unexpected seizure suffered by him just before the accident would exculpate him completely. He might instead remain tight-lipped in the mistaken belief that the fact of the seizure would guarantee his conviction. The shield of privilege allows him, however, to confide in his lawyer, who, in turn, would be best placed to put tearful statements such as “I did it, I murdered him!” in their proper context and calmly explain that as the accident was completely unintentional and outside the client’s control, the law would not regard the client as having committed murder.

The privilege, therefore, encourages open, free and honest communication between a client and his or her lawyer. This, in turn, enables proper access to legal advice and promotes a more just and efficient legal system. As legal systems have grown more sophisticated, additional reasons have been mooted for the existence of the privilege, among them that legal professional privilege helps to turn the wheels of commerce by facilitating the rapid negotiation and settlement of cases, on the basis that clients are better informed.

Privilege belongs to the client

Because the principle exists to protect the rights of the client, the privilege is that of the client and not the lawyer. Only the client may waive the privilege. For this reason, in Australian statutes, the privilege is referred to as client legal privilege, rather than legal professional privilege.

The lawyer, in contrast, is strictly prohibited from disclosing communications, which are privileged, regardless of his or her personal feelings in the matter. A document, once privileged, is privileged forever. The strictness of this rule can sometimes put lawyers in a difficult position. For example, in Gideon Tan v Tey Por Yee [2017] 1 CLJ 543, a Malaysian solicitor who was subject to committal proceedings was not even allowed to adduce privileged communications in his own defence!

Types of legal professional privilege

It is a common misconception, even among lawyers, that the privilege only protects documents that have been prepared for the purpose of litigation. This is not the case. Historically, two distinct types of legal professional privileges have been recognised in common law.

The first type, often called advice privilege, covers all confidential communications made by a client to his or her lawyer for the purpose of seeking legal advice as well as the resulting legal advice given by the lawyer to that client. It applies to non-litigious matters as well and it does not matter that litigation is not pending or contemplated at that point in time.

The second type of legal professional privilege is called litigation privilege and protects communications between a client and a lawyer for the purpose of existing or contemplated legal proceedings.

The Malaysian position

The law in Malaysia relating to legal professional privilege is contained in both statute and common law. The starting point is generally taken to be Section 126(1) of the Evidence Act 1950, which provides: “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.”

In short, if a client were to retain a Malaysian lawyer on a matter, Section 126(1) would protect from disclosure:

(a)     the communications by the client to the lawyer in connection with the matter;

(b) the documents given by the client to the lawyer; and

(c)     the legal advice given by the lawyer to the client.

It is only confidential advice, and not all communications from a lawyer, that would be protected. As an example, an invoice issued by the lawyer for the cost of photocopying paper, would not be considered “advice” or privileged.

It should also be noted that under Section 126(1), only communications to and advice from a qualified advocate are privileged. In Malaysia, communications with an in-house legal adviser (for example, communications between bank officers and in-house counsel employed by the bank) would not be protected by advice privilege under Section 126(1). This differs from the position in some other jurisdictions, notably the US, where communications with legal advisers other than qualified professional lawyers may be protected.

Waiver of privilege and exceptions to the rule

Legal professional privilege is, of course, not absolute, and there are three instances where it would not apply.

Privilege may be waived by a client. A waiver may be express or implied (that is, by conduct). In this respect, clients have to be careful that they do not inadvertently waive privilege, for example, by voluntarily delivering a privileged document to a third party (such as an auditor) without imposing any obligations of confidentiality.

Privilege may be abrogated by a clearly worded statute. A prime example in Malaysia is Section 47 of the ponderously named Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. A High Court judge may, in an investigation into certain offences under the Act, override advice privilege (but not litigation privilege) and order an advocate to disclose information in respect of a transaction relating to property that is liable to seizure under the Act.

Due to the importance of the doctrine of privilege in the administration of justice, however, the intent to abrogate it must be very clear. In the recent landmark case of Bar Council v Ketua Pengarah Lembaga Hasil Dalam Negeri [2018] 4 CLJ 635, the High Court held that the general provisions of Section 142(5) of the Income Tax Act 1967 did not override the specific provisions of Section 126 of the Evidence Act 1950. The court held that the Inland Revenue Board could, therefore, not use the Income Tax Act as an instrument to raid law firms, purportedly to “fish for information” on the clients of the law firms.

Privilege does not apply to communications “in furtherance of an illegal purpose”. Under Section 126 of the Evidence Act 1950, privilege would not arise in respect of:

(a) any communication between a client and his lawyer made in furtherance of any illegal purpose; or

(b) any fact observed by any advocate in the course of his employment showing that any crime or fraud has been commenced since the commencement of his employment.

This exception is a well-established one, with its genesis in common law. If a person consults an advocate to further an illegal purpose, then the communications with that advocate are not privileged, even if the advocate was unaware of the client’s purpose. For example, if a client tells his lawyer that he intends to commit fraud using a forged deed and asks the lawyer to sue on the deed, the communication to his lawyer would not be protected by privilege (of course, the lawyer would also be bound by his code of ethics to refuse to be complicit in the crime, but this would be another issue altogether).

Commonwealth cases make it clear, however,

that the “illegal purpose” exception must be applied narrowly and that the party seeking to override privilege must be able to show a strong prima facie case before privilege is overridden. For example, privilege has been overridden by the English courts in exceptional cases where there was a widespread conspiracy to deceive the courts through the use of perjury and forgery, or where a defendant was abusing the solicitor-client relationship in order to conceal assets, breach orders of court and deceive the court.

Such unusual cases must be distinguished from the common situation where a client proclaims his innocence and asks an advocate to defend him on that basis. If the client is subsequently found guilty (meaning that the client lied to the advocate and committed perjury in the course of the trial), it seems to be accepted in most jurisdictions that this would not by itself constitute “furtherance of an illegal purpose” or be sufficient to destroy privilege.

With this backdrop in mind, the statement of the High Court in relation to the detention of Leonard Teoh Hooi Leong that communications between solicitor and client were no longer privileged once “it involved a criminal investigation”, must be viewed with some doubt. If privilege ceased to apply the minute a criminal investigation was commenced, this would effectively frustrate the very purpose of the doctrine as well as severely undermine the right to legal representation. In addition, this would amount to a reversal of the age-old rule that it is for the party claiming that privilege does not apply to prove that fact.

Legal professional privilege remains a cornerstone of the administration of justice in Malaysia and is a fundamental right that should be jealously guarded by its citizens. The importance of the doctrine to the interests of justice is highlighted by the fact that on Jan 9, the Bar Council submitted to the attorney-general for his consideration the draft of a new Act to regulate the legal profession, with an entire part dedicated to privilege. It is likely that the law on legal professional privilege in Malaysia will continue to develop apace, in line with that in other common law jurisdictions around the world.

Azman Othman Luk is a partner in Rahmat Lim & Partners, Advocates & Solicitors. This article is for general information and does not constitute legal advice or give rise to any solicitor-client relationship.

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