What is protected by legal professional privilege?
Lawyer-client privilege protects all communications between a lawyer and their clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer. The Legal Profession Law and the Professional Code of Conduct for Lawyers provide that a lawyer shall refrain from disclosing/publishing any confidential documents, information and judgments either to the public (such as newspapers), unauthorised individuals, or whomever is likely to publish them. The purpose behind this legal principle is to protect an individual’s ability to access the justice system by encouraging complete disclosure to lawyers without fear that any disclosure of those communications may prejudice the client in the future. When a lawyer is not acting primarily as a lawyer but, for instance, as a business adviser, member of the board of directors or in another non-legal role, then legal privilege generally does not apply. The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not a lawyer, and then gives the same information to a lawyer, the privilege will still protect the communication with the lawyer, but will not protect the communication with the third party.
A lawyer will not have any obligations under the legal professional privilege protection with respect to documentation or information which the lawyer can demonstrate:
- it was in the public domain at the time it was disclosed to the lawyer; or
- it entered the public domain subsequent to the time it was disclosed to the lawyer, through no fault of the lawyer.
Are communications with in-house counsel protected by legal professional privilege?
The Legal Profession Law applies to all individuals who practice law, including in-house counsel, and they are treated in the same way as lawyers working in law firms. Therefore, all communications with in-house counsel are protected by legal professional privilege. However, it is important to note that Legal Profession Law only applies to Saudi nationals. If in-house lawyers are non-nationals, they would be subject to the professional obligations of their home countries.
Does legal professional privilege apply to the correspondence of non-national qualified lawyers?
Non-Saudi national qualified lawyers are not allowed to practice law in Saudi Arabia unless hired by a certified Saudi law firm and approved by the Ministry of Justice. As legal professional privilege is obligated on Saudi law firms, so it will be obligated on non-national qualified lawyers. In the case of a breach of legal professional privilege by a non-national qualified lawyer, the Saudi law firm would be held liable before the Ministry of Justice and then the firm could take appropriate legal action against their non-national lawyer as per the employment contract and the Labour Law. Additionally, foreign qualified lawyers can be entitled to practice law in accordance with the terms of agreements concluded between Saudi Arabia and other countries
How is legal professional privilege waived?
Legal professional privilege may be waived if the confidential communications are disclosed to third parties. Other limits to legal professional privilege may apply depending on the situation being adjudicated. The Legal Profession Law states that a lawyer shall practice the profession in accordance with the Shari’a laws in force. A lawyer shall refrain from any act that compromises the dignity of the profession and shall comply with the relevant rules and instructions. A lawyer shall not refer to personal matters concerning a client’s adversary or representative, and shall refrain from any offensive language or accusation in connection with the content of their written or oral argument. A lawyer shall not disclose any confidential information which has been communicated to them or of which they have become aware in the course of practicing their profession even after expiration of their power of attorney, unless such non-disclosure constitutes a violation of Shari’a requirements. Similarly, a lawyer shall not, without a legitimate cause, decline to represent their client before the case has been concluded.
Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents/ information to the extent that such disclosure is required by an official order of a court or other governmental bodies having jurisdiction, if such a disclosure will prevent committing a crime, and finally if the confidential information related to a dispute arises between a lawyer and their client and disclosure is necessary to resolve the dispute, provided that the lawyer notifies the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring the documents/information so disclosed be used only for the purposes for which the law or regulation requires, or for which the order was issued.
