Legal professional privilege

The primary source of law in Qatar is Shari’a law ("Islamic Religious Law"). This is confirmed in the first Article of the Permanent Constitution of the State of Qatar ("Constitution") which prescribes that “Qatar is an independent sovereign Arab State and the people of Qatar are a part of the Arab nation. Its religion is Islam and Shari’a law (Islamic Religious Law) is the main source of its legislations. Its political system is democratic."

The Government of the State of Qatar, from time to time, issue rules and regulations with the objective of supplementing Islamic Religious Law when the need arises. Articles 105 and 106 of the Constitution provide every Member of the Council of the State of Qatar with the power to propose bills. Once a draft bill has been reviewed and approved by the Council, and subsequently the Government, the draft law is referred to the Amir (Head of State) for ratification and promulgation. The power of law starts after publication in the official Gazette of the State of Qatar.

In many civil law jurisdictions in the MENA 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 the State of Qatar which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the State of Qatar are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal professional privilege.

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 an individual's access to the justice system by ensuring they 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 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 only for the purposes for which the law or regulation was required.  

Pursuant to Article 51 of the Qatar Code of Law Practice, the concept of legal professional privilege in the State of Qatar is limited to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all information disclosed by their client.

Further, Article 265 of the Qatar Code of Civil and Commercial Procedure, prohibits a lawyer or an agent from disclosing information that they obtain in connection with their professional retainer. Fundamentally, the obligation of confidentiality remains in place even after the professional has ended their retainer with the 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 of the client. A key point to note is that neither the Code of Law Practice nor the Code of Civil and Commercial Procedure apply to in-house legal counsel who provide their services on an employment basis. In-house lawyers are instead governed by the Qatar Labour Law. However, to protect information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.

While it may be expected that the concept of legal professional privilege would be more widely applicable within the Qatar Financial Centre ("QFC") (due to the common law basis of its jurisdiction), there are currently no references to the concept in the QFC legal corpus. Accordingly, the above position is also likely to stand in the QFC.

Legal professional privilege in the context of merger control

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

There do not appear to be any recent cases or other legal developments in the State of Qatar regarding legal professional privilege.

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