Protecting Your Secrets: The Shield of Legal Professional Privilege

Nov 29, 2023 | , , , , , | News

Legal systems worldwide, including South Africa, place a high value on protecting the confidential relationship between attorneys and their clients. This confidentiality, often referred to as legal professional privilege, is a crucial aspect of the attorney-client relationship. It ensures that clients can freely share information with their lawyers, secure in the knowledge that this information won’t be forcibly disclosed, which is essential for the proper administration of justice.

Protecting Secrets

Legal professional privilege is a specific right that clients can use to prevent the disclosure of certain communications. This privilege applies to communications made for legal advice or within the context of litigation. It acts as a safeguard for clients, allowing them to share sensitive information with their legal counsel without fear of it becoming public.

It’s important to note that this privilege only extends to attorneys acting in their capacity as legal professionals, and clients can choose to waive this privilege. However, information that has already entered the public domain cannot be protected – highlighting the importance of safeguarding confidential communications, particularly in electronic formats.

 

Distinguishing Between Confidentiality and Legal Professional Privilege

It’s essential to differentiate between the broader concept of confidentiality and the more specific legal professional privilege.

Confidentiality relies on the individual who receives the information to maintain that confidence, whereas legal professional privilege is a right that clients can assert to prevent disclosure. It’s a shield against the forced disclosure of sensitive information.

 

Types of Legal Professional Privilege

There are two main categories of legal professional privilege: Legal Advice Privilege: This privilege covers communications made by clients to attorneys for the purpose of obtaining legal advice. Litigation Privilege: Anything exchanged between attorneys and clients in the context of litigation falls under this privilege.

While confidentiality clauses in contracts can create a sense of discretion, they don’t necessarily establish legal professional privilege. To qualify for privilege, a communication must be made for the purpose of obtaining legal advice or within a legal context.

Importantly, legal professional privilege won’t protect disclosures related to unlawful conduct.

 

Who Holds the Privilege?

The privilege right is held by the client, not the legal representative. Attorneys must respect their obligation to maintain confidentiality based on legal professional privilege, but it’s up to the client to assert this right.

However, it’s important to note that privilege only applies when the information is given to duly qualified and registered legal representatives. This does not cover non-legal representatives, even if they have expertise in a legal field. Informal advice from someone with legal training outside a legal context is also not privileged.

 

Protecting Privileged Information

Once privileged information becomes public, there is no way to suppress its disclosure. Preliminary steps can be taken to prevent threats of disclosure, but once confidential information is out, it’s out for good.

Attorneys and clients should be especially cautious with electronic communication, and confidential information should be password-protected.

In some cases, the public interest may override legal professional privilege. For example, certain laws may require public bodies to grant access to records even if they’re subject to legal privilege, provided the disclosure reveals evidence of substantial legal contraventions or safety/environmental risks that clearly outweigh the harm of breaching privilege.

 

Legal professional privilege allows clients to confide in their attorneys for legal advice or within the context of litigation – assured that this information won’t be forcibly disclosed. While there are limited concerns to consider, this privilege remains a crucial aspect of the attorney-client relationship and safeguards the confidentiality of sensitive information.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:
Zahnri Griebenow

Zahnri Griebenow

Zahnri joined CK as an associate in April 2023.

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