Legal professional privilege

There is no federal system in Bahrain. Instead, the legal system draws upon Shari’a law ("Islamic Religious Law"), tribal law, Egyptian codes and English common law. The Shari'a courts deal primarily with the personal legal matters of Muslims (e.g. marriage and divorce), and the civil courts (derived from the Egyptian system) deal with all other matters. Due to the nature of the civil law legal system, there is no system of precedent in the courts and judgments are often unpublished. Proceedings are conducted in Arabic, mainly on the basis of written submissions with little reliance on live evidence (e.g. from witnesses).

In many civil law jurisdictions in the region, including Bahrain, the concepts of legal professional privilege and "without prejudice" communications do not exist per se. The parties therefore have the right to use any document which may support their position. Lawyers in Bahrain, however, will be bound by duties of confidentiality; these duties in many cases incorporate concepts similar to legal professional privilege.

Article 67 of the Bahraini Law of Evidence in Civil and Commercial Matters provides that "lawyers who acquire knowledge of certain facts or information through the carrying on of their practice may not disclose these unless the facts or information were told to them for the sole purpose of committing a felony or misdemeanor".

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

• was in the public domain at the time it was disclosed to the lawyer;
• entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
• was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by records in existence at the time of disclosure.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides 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 that the documents / information so disclosed be used for the purposes for which the law or regulation was required, or for which the order was issued.

It is advisable that if parties are attempting to settle their dispute in Bahrain, they should qualify any form of communications with statements to the effect that any offer or communication does not constitute an admission of liability. Parties should also seek an undertaking that any information contained within such communications will not be used as evidence in any subsequent proceedings.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent of the client. However, to protect this information, it is possible to enter into a confidentiality agreement between the employer and the employed in-house legal counsel.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Bahrain.

There do not appear to be any recent cases or other legal developments in Bahrain regarding legal professional privilege.

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