The Bar Council's International Malaysia Law Conference 2016 ("IMLC 2016") was held at The Royale Chulan Kuala Lumpur from 21 to 23 Sept 2016.
By Syahredzan Johan
Legal professional privilege is about the fundamental right of a client to obtain skilled advice about the law.
The session on this topic at the IMLC 2016 was moderated by Christopher Leong, President–Elect, LAWASIA; 30th President, Malaysian Bar (2013–2015). The two speakers for the session were The Honourable Justice Datuk Nallini Pathmanathan, Judge of the Court of Appeal and Stephen L Dreyfuss, Former President of the Union Internationale des Avocats (“UIA”) and also a practising lawyer in New Jersey, USA.
Justice Datuk Nallini gave a comprehensive overview of the law relating to legal professional privilege. She started off with the United Nations Basic Principles on the Role of Lawyers which provides, amongst others, that governments shall recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
In Malaysia, legal professional privilege is primarily protected by the Evidence Act 1950, specifically Sections 126 to 129. Justice Datuk Nallini then went through several cases relating to legal professional privilege.
The question of how far legal professional privilege is recognised was also discussed in Justice Datuk Nallini’s presentation. She explored several cases and legislation which appear to allow the privilege to be dispensed with. However, even in those legislation, there are saving provisions.
Justice Datuk Nallini drew the conclusion that the law here has more or less kept in line with the United Nations Basic Principles. The courts have been happy to uphold privilege where it is possible, by interpreting in favour of privilege. It would be interesting to see how the courts would deal with a situation where there are
no saving provisions.
Stephen Dreyfuss started by laying down the importance of confidentiality between the lawyer and the client. The obligation comes in two forms. The first is that all private information obtained by the lawyer from the client must be kept confidential, regardless of whether it is in connection with the matter the lawyer is advising the client on.
The second is that both the attorney and the client cannot be compelled to disclose the communications to anyone.
The common law position is that the attorneyclient privilege belongs to the client, not the attorney. The client can, for example, waive that privilege. However, in civil law traditions, the right belongs to both the attorney and the client: neither can waive it unilaterally.
Both Justice Datuk Nallini and Stephen Dreyfuss raised the issue of in–house counsel, ie whether legal professional privilege is accorded to them. In Malaysia, communications of such counsel are not privileged, in contrast with the position in the United States of America. Since other common law jurisdictions have recognised this privilege for in–house counsel, it may be time for Malaysia to consider to take the same route.
At the end, the foremost conclusion from the session is that legal professional privilege is sacrosanct to all lawyers and forms the cornerstone of the legal profession, and is the bedrock of the administration of justice.
Click here for more news about IMLC 2016.