Saudi Arabia
In the Kingdom of Saudi Arabia (KSA), the primary source of law is “Shari’a”, Islamic law. There are also laws and regulations in Saudi Arabia which are issued by either regulatory or government entities, derived from Shari’a, to regulate most areas of daily life. With regard to legal professional privilege, the Legal Profession Law and Professional Code of Conduct for Lawyers in Saudi Arabia include provisions concerned with legal professional privilege to protect all communications between lawyers and their clients.
The constitution of KSA is Shari’a, as set out in the Basic Law of Governance. The Shari’a in this respect does not refer to lawyers but refers to someone who has been given power of attorney ('Wakalah / Power of Attorney'). Power of attorney (“POA”) is a special enabling document granted to a Saudi Arabian person or entity for use in Saudi Arabia that must be made before the authorised notary public or other authorised official in order to be effective. POA can create rights and obligations in various aspects, including civilian, criminal and competition enforcement. During the POA, the lawyer must take into account any instructions from the grantor of the power stipulated in the POA. The lawyer has an absolute duty to act in the best interest of the grantor at all times. A lawyer who acts improperly can be held personally and criminally liable for losses. The lawyer must keep and preserve accurate records and accounts for all dealings and transactions when exercising his powers. Failure to do so is an offence.
In many civil law jurisdictions in the region, the concepts of legal professional privilege and 'Without Prejudice' communications do not exist per se, as lawyers are bound by duties of confidentiality. For example, under the Saudi Legal Profession Law, a lawyer may not disclose a secret with which they have been entrusted, or of which they have become aware in the course of practicing their profession, unless such non-disclosure constitutes a violation of a Shari’a requirement or if there is an official order by an official entity or to prevent a crime. The essential material information obtained by a lawyer by virtue of their profession is considered "conditional", and not for public disclosure. Such an attorney is obliged not to divulge the confidential information received from clients, except to the extent that they are required to disclose specific information in order to defend their clients before Saudi courts.
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:
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.
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
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.
There do not appear to be any recent cases or other legal developments in Saudi Arabia regarding legal professional privilege.
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