UK4244

CONFIDENTIALITY

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 READING MATERIAL

• Chapter 10, Legal Ethics: Texts and Materials (Richard O’ Dair 2007)
• Legal Profession (Practice & Etiquette) Rules 1978
• Section 126-129 Evidence Act 1950

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 COURSE OUTLINE
• Kerahsiaan (confidentiality)
• Kaedah tanggungan ‘kerahsiaan’
• Prinsip mengenai larangan terhadap peguam dari mendedahkan maklumat mengenai
anakguam kepada pihak ketiga tanpa persetujuan (consent) dari anakguam atau asas-asas
perundangan yang kukuh.
Rujukan
• Finn, ‘Professionals and Confidentiality’ (1992) 14 SYDLR 317
• The Law of Advocates and Solicitors in Singapore and West Malaysia (1998 Tan Yock Lin)

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 LEGAL PROFESSION (PRACTICE & ETIQUETTE) RULES 1978

• Rule 2: Obligation of A&S to give advice on or accept any brief

• Rule 3: A&S not to accept brief if embarrassed
• Rule 4: A&S to accept brief if professional conduct likely to be impugned
• Rule 5: A&S to accept brief if difficult to maintain professional independence
• Rule 6: A&S not to accept brief if unable to appear
• Rule 9: A&S not to undertake defence fairly and honorably
• Rule 16: A&S to uphold interest of client, justice and dignity of profession
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 LEGAL PROFESSION (PRACTICE & ETIQUETTE) RULES
1978

• Rule 24: A&S to be ready for the day fixed for trial
• Rule 25: A&S to disclose all circumstances to client
• Rule 31: A&S to uphold dignity of profession
• Rule 35: A&S not to abuse confidence reposed in him by client
• Rule 40: A&S not to stand surety
• Rule 55: A&S’s lien
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 RULE 35
Rule 35. Advocate and solicitor not to abuse confidence reposed in him by
client.
(a) An advocate and solicitor shall refrain from any action whereby for his personal
benefit or gain he abuses or takes advantage of the confidence reposed in him by
the client.
(b) An advocate and solicitor shall preserve his client's confidence and this duty
outlasts his employment.

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 ETHICAL DILEMMA 2

• Can you defend a client whom you know committed the offence?
• What are the ethical views that governs a criminal defence?

1. Are you duty bound to defend?

2. Can you take up the case to defend him?
3. What sort of defence can you raise?
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 ETHICAL DILEMMA 3
• The accused to a murder charge confessed the offence to you, his
counsel. What should you do?
• Principle: No duty to inform Court of your clients’ confession. Duty of
confidentiality to your client
Note: As a counsel, you cannot:
1. Run a defence that someone else has committed the offence?
2. Put your client in the box to deny?
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 CONFIDENCE & LEGAL PRIVILEGE

• Fundamental ethical duty – keep Client affairs confidential

• A&S acts in Client interest: not to profit personally from client
information
• Client may waive expressly / impliedly
• Exception in cases: (i) a Client admit abusing child; (ii)
misappropriation of pension fund Client controls
• Issue: Why should ethical rule of confidentiality prefer to protect
guilty Client rather than to seek to protect innocent third party from
injury / injustice? 9
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 EXCEPTIONS TO PRIVILEGE OR CONFIDENTIALITY (UK)
1. Privilege in cases involving children
2. Disclosure in the public interest
3. Money laundering
4. Client / solicitor litigation
5. Waiver of privilege
6. Information to the Legal Aid Board
7. Joint retainers
8. Insolvency and bankruptcy

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 CONFIDENCE & LEGAL PRIVILEGE IN UK

• UK Law & Society Guide (R16.01)

“a Solicitor is under a duty to keep confidential to his or her firm the

affairs of Client and to ensure that the staff to do the same”

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 LEGAL PROFESSION PRIVILEGE

• 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
• PACE 1984 (S10)

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 ESTABLISHING LEGAL PRIVILEGE IN UK

S10(1) PECA – Items protected by legal privilege are:

a. Solicitor & Client communication – in connection with giving
legal advice
b. Third Party communication – or in contemplation of legal
proceeding - litigation (expert report)
S10(2) PECA - Exceptions
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 S10 PECA
Section 10 meaning of “items subject to legal privilege”.
(1) Subject to subsection (2) below, in this act “items subject to legal privilege” means—
(a) Communications between a professional legal adviser and his client or any person representing his client made in
connection with the giving of legal advice to the client;
(b) Communications between a professional legal adviser and his client or any person representing his client or
between such an adviser or his client or any such representative and any other person made in connection with or in
contemplation of legal proceedings and for the purposes of such proceedings; and
(c) Items enclosed with or referred to in such communications and made:
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they
are in the possession of a person who is entitled to possession of them.
(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.
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 RATIONALE
Greenough v Gaskell (1833)
Lord Brougham: The rationale for the common law privilege is to
promote the conduct of legal business by encouraging the Client to
confide unreservedly in his legal adviser

Re Lee Wah Cane (1985)

Held: the privilege of confidentiality is intended for the protection of
the Client and not for the protection of the A&S himself 15

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 RATIONALE

1. The need to facilitate access to legal advice

2. The need to facilitate the trial preparation of a case by
securing to the Solicitor a zone of privacy
3. The duty of confidentially which a Solicitor owes to his
Client

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 EXTENT OF PRIVILEGE
A. It is to protect Client not Solicitor
Singapore case Re Le Wah Cane (1985) held:
• Receivership of LWC, Receivers wanted document in possession of
Solicitor
• Issue: whether Solicitor obliged to surrender document to Receivers
• In Receivership – Receivers take place of BOD, their demand equal to
demand by BOD/Company itself
• Court: Solicitor obliged to surrender and privilege uplifted 17

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B. It extends to (i) all communication received and advice given
arising from Solicitor & Client relationship and (ii) include
documents from third party
• If you are common Solicitor for both party, all communication received
would be protected for both Clients. You cannot separate the
information received as privileged to one and not the other

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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 (1983) 1AER 929
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

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 ESTABLISHING LEGAL PRIVILEGE IN MALAYSIA
EA 1950 S126 Professional Communication
(1) - no Advocate shall at any time be permitted
- unless with his Client’s express consent
- to disclose any communication / state contents or conditions of any
documents / disclose any advice given by him
(2) it is immaterial whether the attention of the Advocate was or was not directed
to the fact by or on behalf of his client
Explanation: The obligation stated in this section continues after the employment
has ceased 20

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 ESTABLISHING LEGAL PRIVILEGE IN MALAYSIA

S127 Section 126 to Apply to Interpreters, etc

S126 shall apply to interpreters and the clerks or servants of

Advocates

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 ESTABLISHING LEGAL PRIVILEGE IN MALAYSIA
S128 Privilege not Waived by Volunteering Evidence
- If any party to a suit gives evidence therein at his own instance or otherwise
- he shall not be deemed to have consented to such disclosure as mentioned in
S126(1)
- and if any party to a suit or proceeding calls any such Advocate as a witness, he
shall be deemed to have consented to the disclosure
- ONLY if he questions the Advocate on matters which but for such question he
would not be at liberty to disclose

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 ESTABLISHING LEGAL PRIVILEGE IN MALAYSIA
S129 Confidential Communications with Legal Advisers
• no one shall be compelled to disclose to the Court
• any confidential communication taken place between him and legal adviser
• unless he offers himself as a witness
• in which case he may be compelled to disclose such communication as may
appear to the Court
• necessary to be known in order to explain any evidence which he has given, but
no others
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 MAIN ASPECTS OF PRIVILEGE

1. Scope of Privilege

2. Ambit of Coverage

3. Exceptions to Privilege
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 SCOPE OF PRIVILEGE
Norton v Lord Ashburtonn (1914)
HOL: Duty of confidentiality continues although relationship ended. thus, content of
will drafted by Solicitor remain confidential until grant of probate

1. Protection continues whether Client draw attention or not. S126(2) lawyer must
know, no defense of ignorance
2. S126 shall be “at any time”: meaning privilege exists beyond tenureship of
employment
3. Not only A&S himself – include servant of A&S S127 – S126 shall apply to
interpreter and clerk or servant of A&S
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 AMBIT OF COVERAGE

1. Communication made to Solicitor in the course and for the purpose

of his employment as such Advocate by and for the purpose of his
professional employment
2. The contents and condition of the document which the Solicitor
become acquainted in the course and for purpose of his professional
employment
3. Any advice given by the solicitor in the course and for purpose of
such employment
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 AMBIT OF COVERAGE
• Covers the whole spectrum of communication that can take place
between them:
• Communication can be oral or writing
• Document covers contents and conditions
• Condition refers nature of document, original, duplicate, triplicate and
also physical condition legible or in good form or in tatters
• Advice include oral and writing
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 EXCEPTIONS TO PRIVILEGE
1. Waiver of Privilege
• S126(1) “… unless with his Clients express consent”
• Need not to be in writing (safer). Client was asked the question and agreed
Dato Au Ba Chi and Ors (1989)
“Privilege is client’s, he may expressly (S126) or impliedly (S128) waive by calling
barrister, pleader as witness and questioning him on matter / question he not in
liberty to disclose”
• But he doesn’t lose it if he gives evidence in the Solicitor either at his instance or at
instance of opposite party
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 EXCEPTIONS TO PRIVILEGE
Yeo Ah Tee v Lee Chuan Meow (1962) MLJ 413 (COA)
• Question was whether this evidence
Buttrose J: Unable to construe as express waiver by Plaintiff of the privilege
Re Choa Mui Sai (1937) MLJ 236
• Evidence was given during trial (cross examination) as what complainant said to
her lawyers / their clerks & what they said to her.
• Trial Court – evidence should be excluded S126 EO
Chua Su Yin & Co v Ng Sung Yee (1991) 2 MLJ 348
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 EXCEPTIONS TO PRIVILEGE

2. Proviso to S126(1) EA
Provided that nothing in this section shall protect from disclosure:
(a) any such communication made in furtherance of any illegal purpose
(b) any fact observed by any advice in the course of his employment as such
showing that any crime or fraud has been committed since commencement
of his employment
• Both deal with criminal conduct that about to happen. Time is important
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 FOR S126(1) PROTECTION: ILLUSTRATION (A)
A (client) says to B (advocate) “I have committed forgery and I wish you
to defend me”. As the defence of a man known to be guilty is not a
criminal purpose this communication is protected from disclosure

R v Central Criminal Court ex parte Francis & Francis (1988)

Held: the document held by Solicitors which were intended by client and
third party to be used to further a criminal purpose eg. laundering
proceeds of drug trafficking, were not subjected to legal privilege
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 FOR PROVISO (A): ILLUSTRATION (B)
A (client) says to B (advocate) “I wish to obtain possession of property by the use of a forged deed on which I request you to
sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure

Re Detention of Leonard Teoh Hooi Leong (1998) 2 AMR 1033

HC JB: Abdul Malek J

“It cannot be denied that as counsel for N, THL was privy to certain privileged info. But the veil of privilege may be set aside
by the Court on the application as a Solicitor who suspects that fraud or crime had been committed by his client”

i. A Solicitor cannot be compelled to disclose legitimate communication whether oral or written passing directly between
him and client. This privilege, however, does not extend to communication made in furtherance of a fraud or criminal act

ii. In this case, as the police was investigating a kidnapping case involving N, THL’s refusal to inform the police of N’s
whereabouts made him a prime suspect and the remand order would therefore be appropriate in the circumstances.
The communication between N and THL were no longer privileged as it involved a criminal investigation

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 FOR PROVISO (B): ILLUSTRATION (C)
A, being charged with embezzlement, retain B, an advocate to defend
him. In the course of the proceeding, B observes that an entry has been
made in A’s account book, charging A, with the sum said to have been
embezzled, which entry was not in the book at the commencement of his
employment
This being a fact observed by B, in the course of his employment,
showing that a fraud has been committed since the commencement of
the proceedings, it is not protected from disclosure.
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 EXTENT OF THE DOCTRINE
Extended not only for Court proceeding, but also Quasi Proceeding: Rent Board,
Assessment Board & Disciplinary Board
Baker v Campbell (1983)
• Australian police man attempted to seize document held by Solicitor firm
Held:
• Doctrine extended to document that had been brought into existence for purposes
giving advice and include those created solely for purposes otherwise than in
relation to any criminal or civil proceedings that existed OR in contemplation

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 EXTENT OF THE DOCTRINE
It goes beyond judicial power because:
1. Privilege documents will lose protection if they come into possession of another
2. All the factors requiring confidentiality and particularly the need for the Client
to be able to be frank are as much defeated by disclosure on search warrant
as by disclosure by Court
3. A lawyer should be able to give advice properly and frankly. Important for
maintenance of legal system that people should have access to legal advice
without possibility of being used in a prosecution
* Important that seizure of documents through a search warrant
35
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 COMMUNICATION RELATED TO INFORMATION
RECEIVED FROM THIRD PARTY

Re Sarah C Getty Trust (1985)

Davies J:
the privilege attaching to Solicitor & Client communication made
in a professional capacity for purposes of receiving or giving
professional advice extended to information which the Solicitor
received in a professional capacity from a third party and which
he conveyed to his client
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 DOCUMENT UNDER PRIVILEGE VESTED IN 2 PARTIES
• The party desires protection of privilege must seek it before the other party adduce the confidential
communication in evidence or otherwise relied on it at trial
Goddard v Nationwide Building Society (1986) (COA)

• A common Solicitor acted for both BS and P. Solicitor has attendance note recording info received from BS
and his conversation with P concerning the info. Attendance note later disclose to BS. P claim BS for
negligence & in defence BS refer to the attendance note. P claimed that attendance not under privilege,
apply to struck out evidence and injunction restraining BS to use it.
COA:
• If litigant has in possession covered document, he can still use it as secondary evidence in litigation. However,
if he yet to use in such way, mere intention is no defence to claim to invoke professional privilege

• Based on fact: (i) Attendance note written by Solicitor for P who entitle for privilege; (ii) BS had not use the
attendance note as secondary evidence but intended to do so; (iii) P claim to invoke privilege is successful
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