In this article Petra Billing examines the concept of privilege as between client and lawyer and how it may vary across jurisdictions, affecting many companies including minerals operators where they operate in different international markets.
The concept of privilege entitles a party (or their successor in title) to withhold evidence (which might otherwise be damaging) from production to a third party or the court.
Once privilege is established, an absolute right to withhold evidence arises. The court cannot be called upon to exercise any discretion, whether on the grounds of public policy or otherwise, to force disclosure of the evidence, be it oral or documented.
There are various types of privilege in England and Wales.
The most common is Legal Professional Privilege which protects the confidentiality of communications between lawyer and client encouraging absolute honesty. It extends to in-house lawyers and their internal clients.
The concept of Legal Professional Privilege is universally recognised in most jurisdictions but its exact nature and scope varies. It follows that for businesses with interests in many jurisdictions, such as minerals operators, there can be considerable scope for dispute as there is no universal set of rules on how an international tribunal can resolve any dispute concerning whether or not privilege applies.
The differences are surprising and it is easy to get caught out.
Focusing on some key jurisdictions:
BELGIUM: Article 458 of the Criminal Code imposes an obligation of professional secrecy on lawyers when acting in their capacity as lawyers with their client. This obligation is incorporated in the Belgian rules of professional conduct and jurisprudence has applied the obligation of professional secrecy in combination with Articles 6 and 8 of the European Convention of Human Rights.
CHINA: The concept of legal professional privilege does not exist under the laws of the People’s Republic of China (PRC). PRC’s laws and regulations do not contain any provisions that exempt lawyers from being forced to disclose information they receive from a client to a third party. There is no protection of communications between lawyers and clients on the basis of legal professional privilege.
POLAND: The concept does not exist. Lawyers are obliged by a duty to keep confidential all information which they become aware of when providing legal services. This professional secrecy exists in all kinds of proceedings, but under some circumstances, strictly provided for by law, the secrecy obligation may be waived in criminal and competition proceedings.
SOUTH AFRICA: The concept here consists of two components. The first is legal advice privilege and the second is litigation privilege. The first protects reciprocal communications between lawyers, advocates or admitted in-house legal advisers and clients where the client is seeking legal advice and the advice is given in a professional capacity. The second component protects communications between clients and their lawyers, advocates and admitted in-house legal advisers, clients and third parties for the purposes of pending or contemplated litigation. The contents of privileged documents need not be disclosed but the existence of them must be.
UKRAINE: The principles and content of legal professional privilege are established by the Law of Ukraine ‘On Advocacy and Legal Practice in Ukraine’ No 10424, where it applies it will exist in all types of proceedings and the Criminal Procedural Code of the Ukraine contains a direct statement that a lawyer shall keep all information on a client privileged. Legal professional privilege can only be attributed to information obtained by a member of the Ukrainian Bar Association – independent lawyers (attorneys-at-law) or members of an advocacy bureau or union. In-house lawyers or foreign lawyers who are not members of the Ukrainian Bar are not protected by legal professional privilege.
Organisations which operate on a global basis like most mineral operators are therefore best advised to proactively manage the risk associated with such differences in law. DLA Piper has produced a Legal Professional Privilege Handbook in partnership with the European Company Lawyers Association (https://www.dlapiper.com/en/uk/ insights/publications/2015/03/legal-professional-privilegehandbook/) which provides a “compare and contrast” across most jurisdictions. We suggest that understanding how different jurisdictions approach such issues should form part of a business’s communications policy.