Can’t say all!

The Legal Profession Code of Ethics 1988 attempts to codify and to set out the duty of an attorney-at-law to the profession and himself, the State and the public, his clients, the courts and the administration of justice as well as to his fellow attorneys-at-law.

There are varying degrees of importance attached to these categories but there is one aspect of his duty to the client which remains generally inviolate in our system of law, that of maintaining attorney/client privilege.

Rule 71 of the code provides that “an attorney-at-law shall never disclose, unless lawfully ordered to do so by the court or required by statute, what has been communicated to him in his capacity as an attorney-at-law by his client and this duty not to disclose extends to his partners, to junior attorneys-at-law assisting him and to his employees provided however that an attorney-at-law may reveal confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.”

The duty of maintaining privilege or confidentiality arises as soon as a professional relationship of attorney and client arises. It is irrelevant whether the attorney is a salaried employee or in practice on his own account. Where off-the-cuff advice is given by the attorney-at-law out of friendship or outside of a professional situation, the question of privilege does not arise.

The scope of the duty to maintain the privilege requires the attorney not to disseminate information provided by the client, not to use such information for the attorney’s own benefit and not to use the information to the detriment of the client.

To illustrate how this translates into a real-life example, an attorney should not accept a case which requires him to act against a former client if he possesses any confidential information which might be prejudicial to the former client in the later matter.

Any communication whether oral or written passing between an attorney and his client for the purpose of giving or obtaining legal advice is privileged from disclosure. The net has been cast even wider in the case of Re Sarah C Getty Trust [1985] 2 All E.R. 809 — the court concluded that “the professional privilege attaching to [attorney]/client communication made in a professional capacity for the purpose of receiving or giving professional advice extended to information which the attorney received in a professional capacity from a third party and which he conveyed to his client”. Clients are cautioned that this does not, however, include communications made for the purpose of committing a fraud or crime.

The inviolability of the confessional box does not exist outside the realm of ecclesiastical law where according to the canons of the church the priest is required not to reveal crimes confessed to him in confessional. If you describe in great detail for your attorney how you plan to rob the Inland Revenue or to murder someone, you cannot claim privilege in relation to that.

The privilege belongs to the client and continues until waived by the client even after the attorney/client relationship has long come to an end. Privilege is not waived merely by referring to the document in pleadings (legal documents setting out a client’s case for the court) affidavits or lists of documents. Waiver may occur if the document is disclosed to the other side in the course of litigation unless it is clear that some mistake has been made or the disclosure was induced by some fraud on the part of the other side.

The court usually recognises and enforces the client’s right to legal professional privilege by way of injunction to either compel the return of a privileged document, by preventing the attorney from giving evidence of the confidential information or refusing an order for discovery of written communications amongst other things.

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