Legal professional privilege

While the key tenets of the legal system of Lebanon are based upon both the Shari'a law ("Islamic Religious Law") and the French civil law system, much of Lebanon's legislation also derives from legal principles inherent within the Ottoman Empire.

By way of its constitution, which was amended on 21 September 1990, Lebanon constitutes a parliamentary democracy. The President is the head of the State of Lebanon and is charged with responsibility for promulgating the laws adopted by the Lebanese Parliament. In contrast, the Lebanese Prime Minister oversees the Executive Branch and presides over the Cabinet of ministers, which is responsible for implementing the executive functions of Lebanon. 

Lebanon has a tripartite judicial system, namely: civil courts, commercial courts and criminal courts. The Court of Cassation of Lebanon is the final court of appeal, reserved to hear cases of high value or  particular significance.

In many civil law jurisdictions in the region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in Lebanon, whose constitution does not contain any express provision in respect of legal professional privilege.

Legal professional privilege protects all communications between professional legal advisers and their clients 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 risk 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 protection if they 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 contemporaneous records.

A lawyer may disclose certain documents / information that would otherwise be protected by lawyer-client privilege 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 only for the purposes required by law.  

As is the position with most civil law jurisdictions in the Middle East, there are no express privilege rules in Lebanon and parties are able to, in theory, adduce in evidence any document which may support their position. Instead, the concept of legal professional privilege in Lebanon is limited only to the professional relationship between a lawyer and their client, through the lawyer's obligation to keep confidential all communications passing between the lawyer and their client.

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 to 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 Lebanon.

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