A SUMMARY OF THE ARTICLE “LEGAL PROFESSIONAL PRIVILEGE: IS IT PARAMOUNT?

BY PROF. DR. MOHD. AKRAM SHAIR MOHAMAD

 The privilege is a derogation from the general rule that all relevant evidence is both admissible and compellable
before a court/tribunal. Thus, certain communications between client-lawyer is admissible but not compellable.
 This privilege recognizes that excellent legal service serves public ends and such service depends upon the
lawyer being fully informed by client. Without this privilege, client wouldn’t have confidence and couldn’t be
candid to furnish all relevant information which is needed by the lawyer to properly deliver his service.
 This privilege is also essential for the orderly and dignified conduct of individual affairs in a social atmosphere
which is being poisoned by officials and other invasions of privacy.
 This privilege is divided into two main categories: legal advice privilege and litigation privilege.
 Legal advice privilege gives the person entitled to it the right to decline to disclose any confidential
communication, i.e. to justify refusal to answer the question posed, as well as refusal to produce any documents
for inspection.
 To attract legal advice privilege, the advice must be given in a relevant legal context, i.e. whether it is one where
client will consult special professional knowledge/skills of lawyer, so that the lawyer will advise him on what he
should or should not do. Further, this privilege is permanent and may be invoked in subsequent proceedings.
 Litigation privilege meanwhile, arises only when litigation is in prospect or pending. From the moment litigation
is contemplated, any communication between the client and the solicitor made for the dominant purpose
concerning the litigation will be privileged.
 Litigation privilege also applies to communication with 3 rd party such as potential witness and expert witness, if
such communication is also made dominantly for the purpose relating to the pending litigation.
 However, the privilege can only be invoked with the litigation being reasonably in prospect. The mere
possibility of litigation occurring at some point in the future would not suffice to invoke this privilege.
 Litigation privilege is a creature of adversarial system. This system makes legal proceeding to take the form of
contest between parties. Each of the parties then builds his own case and gather his evidence to try to defeat the
other, and the judge is to decide who is the winner. Therefore, in such system, each party should be free to
prepare his case as fully as possible without the risk that his opponent will be able to recover the material
generated by his preparations.
 Under common law, waiver of this privilege can be done expressly when the client elects to disclose privileged
communication or impliedly when he sues his solicitor. This is because the client cannot deliberately subject a
relationship to public scrutiny by suing his solicitor, while at the same time seek to preserve the confidentiality.
 In Malaysia however, waiver can only be done by written, express consent and no room exists for implied
waiver. This is because s 126 of the Evidence Act 1950 permits only one mode to waive the privilege, i.e. upon
the express consent of the client. Therefore, the pragmatism and rationale of implied waiver along with various
authorities laid in common law are ineffective in the face of specific and singular statutory exception in s 126.
 India and Singapore through decision of its apex court also maintain the same position as Malaysia.
 This privilege does not cover communication made for illegal purpose; i.e. in furtherance of fraud/crime.
 Common law cases have held that other that this exception, the privilege is regarded as to be absolute. No
balancing exercise needs to be done because it is inappropriate to balance the public interest underlying legal
advice privilege against the public interest in ensuring that all relevant evidence is made available to defence.
 Therefore, in controversial case of Derby Magistrate decided by House of Lords, this privilege is prioritized
even over the purpose of protecting a man from wrongful conviction by making available to him all relevant
evidence for his defence.
 Only in Canada, a balancing exercise is performed. This solicitor-client privilege is not absolute and may in
some circumstances be required to yield in order to allow an accused to make full answers and defence to a
criminal charge levied against him.

NUR KAMILAH BINTI CHE IBRAHIM (1519454)