Breaking the code of silence: The Lawyers-Client Privilege explained.

Introduction

Lawyer-client privilege, also known as attorney-client privilege, is a legal principle that protects the privacy of confidential communications between a client and their lawyer. The principle is meant to encourage clients to be honest and open with their lawyers so that the lawyers can provide the best possible legal advice and representation. Essentially, it means that any information a client shares with their lawyer is kept confidential and cannot be disclosed without the client’s permission.

A communication is deemed ‘confidential’ if not intended to be disclosed and made in a manner reasonably calculated not to disclose its contents to third parties other than those to whom disclosure is in furtherance of the client’s interest in seeking professional legal services or those reasonably necessary for the transmission of the communication.

Confidential communications between a lawyer and a client can include any information that is shared between them in the context of seeking legal advice or representation.  This will usually include:

• Personal Information: Any personal information that the client shares with their attorney, such as their name, address, and other identifying information.
• Legal Issues: Any information related to the legal matter at hand, such as facts of the case, potential witnesses, and evidence.
• Communications: Any written or verbal communications between the client and their attorney, such as emails, letters, phone calls, and in-person conversations.
• Strategies: Any strategies or plans that the attorney develops to help the client with their legal matter.
• Mental Health: Any information related to the client’s mental or emotional state that is relevant to the legal matter, such as a diagnosis or treatment plan.

When does Lawyer-Client Privilege apply?

Lawyer-Client privilege usually applies when:

1. A client or potential client communicates with a lawyer regarding a legal matter.
2. When the lawyer is acting in a professional capacity; (this will normally include when the lawyer offers legal advice or opinion in respect of an issue that has been brought before him).
3. When the client intends the communication to be private and acts accordingly.

So, if the client expects the communication to be kept private, the lawyer will be bound to keep it private.  Any information a lawyer receives in the course of a meeting with a client cannot be repeated outside the legal team without the express consent of the client.

The Lawyer-Client privilege remains effective when the lawyer-client relationship ends. Even more interesting is the fact that it continues after the death of the client.  The only way the information can be disclosed is if, no successor or person is claiming the privilege through the deceased client.

Who may claim this privilege?

These categories of persons are entitled to claim privilege:

1. The client;
2. A guardian of the client;
3. Personal representatives of the deceased client;
4. The successor of an artificial client (such as a company)
5. Client’s Lawyer at the time of the communication.

What information is protected under Law-Client Privilege?

• The instructions are given by the client to his/her lawyer;
• Counsel’s opinion which has been written down;
• Documents that have been brought into existence;
• Copies of original documents produced for such a purpose;
• Already existing documents are not in themselves privileged but have been assembled by the lawyer and betray the trend or nature of the advice given to the client.

Thus, any information or material which is provided by the client or lawyer in the professional engagement to give or receive legal advice will be covered by privilege.

When will the Lawyer-Client Privilege not apply?

Although the lawyer is mandated to keep secret the information and communication with the client secret even after the client’s death, in the following circumstances, the lawyer can divulge or break privilege:

• With the consent of the client: A lawyer can disclose information obtained from a client if the client has given prior consent for the information to be disclosed.
• To defend against a legal claim: A lawyer can disclose information obtained from a client if it is necessary to defend against a legal claim made by the client.
• To prevent a crime or fraud: If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged. If, however, the client has completed a crime or fraud and then seeks the advice of legal counsel, such communications are privileged unless the client considers covering up the crime or fraud.
• Death of a Client: The privilege will usually not apply in situations where litigation ensues between heirs, legatees, and other parties claiming under the deceased client;
• Common interest Exception: If two parties are represented by the same lawyer in a single legal matter, neither of them may claim the lawyer-client privilege against the other matter if that matter pertains to the subject matter of the previous joint representation.
• Public Information: information that is not intended to be confidential or one which is easily accessible in the public domain will not attract privilege and thus, a lawyer will not be bound by the lawyer-client privilege not to disclose the said information.
• Third-party knowledge: Where the information, which is meant to be confidential, comes to the knowledge of a third party who is not associated with the lawyer, then the information so received loses its privilege in respect of the third party. This is because the third party, not an employee or an agent of the lawyer cannot be compelled to keep said information confidential. Thus, he or she will be free to disclose the same when asked; and the privilege will not apply to him/her.

Conclusion

Confidentiality is the bedrock principle of legal ethics and while this privilege is firmly established, its application is not absolute. Note that the circumstances of the communication, its content, and actions relating to the privileged communication must all be carefully considered to preserve the integrity of the privilege.

By: Abdal-Sulleyman Hafiz

The Writer is a Barrister and Solicitor of the Supreme Court of Ghana and is currently a pupil at Zoe, Akyea & Co Law Firm.  His legal interests include, but are not limited to, Corporate and Commercial Practice, Family Law, Intellectual Property, and Dispute Resolution.