When Does Legal Professional Privilege NOT Apply in South Africa?

Everything you say to your lawyer is protected, right? Wrong. There are situations when legal professional privilege doesn’t apply in South Africa.

Here’s how to understand the meaning of legal professional privilege and how it differs from confidentiality.

The concept of legal professional privilege

Attorney-client privilege is a legal privilege that enables an attorney to keep communication with his or her client secret. An opposing legal team cannot demand access to this information, either in a discovery request or by asking an attorney to testify under oath. Privileged communication can’t be used as evidence or testimony in a trial.

South African courts distinguish between two types of privilege.

Legal professional privilege is the right of a client to the confidentiality of communications between a client and his or her legal advisor.

Litigation privilege relates to communications between an attorney and his or her client for the purpose of pending or contemplated litigation.

What are the conditions for attorney-client privilege to apply?

One-on-one communication between a client and his or her attorney is considered to be privileged only when:

• it is for providing and receiving legal advice
• it is in the process of or in contemplation of litigation
• it’s given by an in-house legal advisor or practising attorney
• it’s made in confidence
• privilege is claimed.

Attorney-client privilege can’t be used to provide or receive advice on how to commit or cover up a crime or fraud. For example, legal privilege can’t be claimed if a client asks his or her attorney how to destroy evidence of a crime.

The attorney-client privilege belongs to the client, so the client’s intent determines whether privilege applies.

Privilege has to be claimed

As stated above, legal privilege belongs to the client, but it has to be claimed. It’s important to understand how privilege is claimed.

Claiming privilege means it’s vital for a client to secure confidentiality by staking a claim of privilege over information or the contents of communication. Written communications, for example, whether it’s an email or document, should state that their dominant purpose is to request legal advice. This will aid in claiming privilege.

How the discovery process affects legal professional privilege

The right to legal professional privilege is not a “positive” right, enforceable against the whole world. It’s a “negative” right that entitles a client to refuse disclosure of certain information in legal proceedings by holding up the “shield of privilege”.

Privilege can be used to refuse disclosure of certain information in legal proceedings – not to suppress publication of that information if the confidentiality has been breached. If the information enters the public domain (in court, say, or in the media) the confidentiality is lost. It’s then too late to rely on legal professional privilege to secure that confidentiality.

A client or litigant must assert legal professional privilege before a communication will be afforded legally privileged status. Claims of privilege should be made on a question-by-question or document-by-document basis.

Generally, privilege is asserted ahead of a court proceeding during discovery with notice to the parties. Privilege may only be claimed by the person who holds it or by his or her attorney on a client’s behalf.

An opponent’s attorney can compel a document to be included in discovery if it has not be properly subject to privilege under the law.

Waiving privilege by full or partial disclosure

Only a client has the right to waive privilege and authorise his or her attorney to divulge information. An attorney cannot waive privilege.

The client’s waiver can be either explicit or implied. But it’s important to understand that if a client reveals the confidential information, it may be implied that the information is no longer confidential and the attorney – and court – may accept that privilege has been waived or abandoned.

A recent judgment in the Gauteng Local Division of the High Court clarified the concept of legal professional privilege. A legal opinion containing confidential information about a company, drafted by one of its in-house legal advisors, found its way into the public domain.

The company obtained an urgent interdict preventing various media houses from publishing the information contained in the document. Consequently, the media houses applied to court to have this order overturned and were successful. It was found that the company could not rely on privilege to prevent the publication of the confidential information contained in the legal opinion.

Although it was confidential, the company didn’t do enough in the events leading up to the granting of the interdict to claim privilege over it and it was too late. The information had already been published online. This rendered the relief sought futile.

Difference between legal professional privilege and confidentiality

The terms privilege and confidentiality are often used interchangeably. They do overlap but, in law, they’re two distinct concepts.

Confidentiality is a broader term than legal professional privilege. Information may be confidential even when it’s not protected by legal privilege. In essence, attorney-client privilege is what upholds attorneys’ duty of confidentiality in legal proceedings.

Confidentiality refers to the duty of an attorney to preserve the secrecy of all communications between himself or herself and the client. Confidentiality extends to all information in respect of a client’s affairs, whether oral or documentary.

The right to have information kept confidential belongs to the client and remains in effect infinitely. This right continues even when the mandate between client and attorney ends. It must be upheld even after a client’s death. Only the client can waive that right to confidentiality.

Confidentiality is a fundamental component of privilege. The loss of confidentiality will lead to a loss of privilege. It is therefore important to not circulate privileged material too widely. If you circulate privileged material, it’s important to mark the document as “confidential and privileged” and not for onward circulation.

However, confidential information can be used against a client in legal proceedings, whereas privileged information – which by nature is also confidential – cannot, unless so ordered by a court of law.

Whereas attorney-client privilege is absolute, specific exceptions apply to the duty of confidentiality. An attorney may be permitted or required to disclose a client’s confidential information, without the client’s consent, for purposes that you can read about here.

Confidentiality vs. privacy

The term “confidentiality” is also often used interchangeably with “privacy” – but again, there’s a difference in meaning.

Whereas confidentiality is about data, privacy is about the individual. It refers to the right of individuals to freedom from intrusion in personal matters.

In the context of the internet age, it typically refers to the right of individuals to prevent third parties from accessing their information without permission.

For example, legal protections such as the Protection of Personal Information (POPI) Act protect privacy by restricting the collection, use, distribution and storage of personal information. This is information that identifies an individual, from a full name or ID number to a bank account number.