LEGAL PROFESSIONAL PRIVILEGE: DO YOU REALLY KNOW WHAT THIS COVERS? BY LYLE PERRY

Privilege is a word frequently used throughout many professions; however it is one often employed incorrectly.   Privilege in itself is a broad concept and one needs to identify exactly which privilege applies to their particular situation.   One of the most common forms of  privilege is that of Legal Professional Privilege.  But do you really know what this covers? 
Legal Professional Privilege is a well recognised category of privilege which applies to confidential communications made between legal advisor acting in a professional capacity and his client for the purposes of obtaining legal advice.  Legal professional privilege is a right necessary for the proper functioning of the adversarial system. 
In order for legal professional privilege to exist, four requirements have been identified as essential: 

The Legal Advisor Must Have Been Acting in His Professional Capacity at the Time 

This is a question of fact.  It follows, that simply by virtue of the person being an advocate or an attorney, does not give rise to the conclusion that everything that he might say, or that might be said to him, for the purpose of obtaining his advice will be privileged. For privilege to obtain, he must be an adviser in a professional capacity.[1] 
There are various indications of this, for example, the payment of a fee.  The payment of a fee is an important, but not conclusive, indication[2] that he was acting in his professional capacity.  Other indications are where the consultation was held, what the underlying tenor was, and whether the legal advisor is qualified or is practising as an attorney or advocate.   

The Advisor was Consulted in Confidence 

I need to draw attention to the distinction between two similar concepts, that being confidentiality and legal privilege. 
There is a common law duty of confidence that applies to the legal profession.  This duty of confidence is a wider conception than privilege itself, in that an attorney must preserve the confidence of a client absolutely, except to the extent that disclosure is rendered by the common law to be necessary or permissible.
This confidence covers all oral and documentary information in respect of the client’s affairs gained in acting for him whether from the client himself or any other source. The attorney must do his best to curb breach of this confidence himself, and also on the part of his staff that work with the confidential information.[3]  Confidentiality although a wider concept, in respect of privilege, it is only one of the requirements for the claiming such privilege.   
It can be said, in order for this requirement to be met, the communications must originate in a confidence that they will not be disclosed.[4] [5]  There will be no confidentiality if the nature of the communication necessarily reflects willingness that it be disclosed to the other party.[6]  In areas such as Family Law, one can often have a situation where the attorney acts for both parties.  In such a situation where two parties share a common interest[7], this element of confidentiality may be absent.[8] 
One must also remember there is a distinction between protected and unprotected confidential communications.[9]  
In summary, this requirement which may initially seem like a simple prerequisite to meet is a question of fact, which may cause some problems in establishing whether legal professional privilege exists or not.  

The Communication was made for the Purpose Of Obtaining Legal Advice 

The communication between client and legal adviser must have been made for the purpose of obtaining legal advice or at least it must have been connected with this purpose. This requirement is however, one often confused.  There is no need for the legal advice to have been concerned with litigation, actual or contemplated.   This confusion arises as that particular requirement is a prerequisite for a class of privilege known as “litigation privilege” or “work product privilege”.  This category refers to the privilege that attaches to communications brought into existence during the course of litigation or for the dominant purpose of litigation.   
It is only fairly recently that litigation privilege has developed an independent identity from that of legal professional privilege.  Legal professional privilege only applies to confidential communications between the client and his legal representative, whereas litigation privilege applies to communications of a non-confidential nature between a legal representative and third parties (as well as non-communicative material) brought into existence for the dominant purpose of litigation.   
To further clarify such distinction, we can look at the justification sustaining legal professional privilege which is based on the need for protection of communications between a client and his legal representative in order to protect the relationship between legal advisor and client.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case by a lawyer.[10]   

The Advice must not Facilitate the Commission of a Crime or Fraud 

The privilege does not apply if the client sought advice for the purpose of committing a crime or fraud.  Privilege will still not apply even if the legal adviser is unaware of the client’s intention.[11]  This requirement again makes perfect sense.  One cannot protect any sort of communication which is akin to a crime.  
It is obviously more difficult with fraud cases.  Where fraud is alleged in civil cases, the privilege may be defeated only once there is at least prima facie evidence that the client intended to obtain advice to facilitate his dishonest purpose.[12] 
Additional Points to Remember 
Since privilege is conceived as an aid to litigation and in the interest of the public, one must remember the privilege is the client’s and not the lawyer’s.  It thus follows, as a right of the client’s, the privilege must be claimed by him, by his agent or his legal representative on his behalf.  However if the client wishes to make disclosure, neither the court nor his representative is entitled to frustrate him from doing so.  The client can waive this privilege expressly or by implication.[13] 
If a document is not privileged, one cannot create privilege by merely handing over the document in a confidential manner to the attorney, as it will not be a communication for the purpose of obtaining legal advice.[14]   One must also remember that the court has an inherent power to examine any document for which privilege is claimed[15]. 
One therefore needs to understand the exact form of privilege they are claiming and the requirements for such privilege to apply.  It is with this knowledge, that a legal practitioner can confidently and correctly advise his client as to their rights in terms of the law of privilege. 
Lyle Perry is a candidate attorney in the Corporate Department at Bowman Gilfillan. 

[1] Lawsa Vol 9 First Reissue, para 551(1). It has also been accepted that the privilege also extends to communications made by salaried legal advisers i.e. advocates or attorneys who are employed by a government department or a company.
[2] R v Fouche 1953 (1) SA 440 (W)
[3] Lewis, Legal Ethics, 291.
[4] Lawsa Vol 9 First Reissue, para 551(1).
[5] In Bank of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd and Others 1983 (2) SA 627 (W) at 629, the court stated that the basis for the privilege is confidentiality and when the confidence ceases, privilege ceases too.
[6] The case of Giovagnoli v Di Meo 1960 (3) SA 393. illustrates this, where a litigant sought to prevent his attorney from disclosing that he had been authorised to conclude a settlement. The court held that a client’s instruction to his attorney to act on his behalf and obtain a specific settlement is not privileged, because it lacks the confidentiality element precisely because it was intended to be disclosed to the client’s opponent
[7] Kelly v Pickering & Another (1) 1980 (1) SA 753
[8] In Middeldorf v Zipper  1947 (1) SA 545 (SR), the court allowed an attorney to give evidence of the negotiations leading up to a contract between the parties for whom he had acted.
[9] This distinction can be illustrated as follows; “a client seeks and receives advice from her attorney on how to keep the common estate from her husband. The communication, the request for and the giving of advice between the client and attorney are privileged and cannot be disclosed to anyone. On the other hand, a client goes to her attorney and instructs the attorney to transfer her estate to buyer ‘X’. That communication is merely confidential, it relates to an act or fact but not to advice. The attorney’s obligation not to tell the media or the like arises out of his professional obligations, not privilege” - Derebus, Money Laundering Legislation July 2002.
[10] A simple illustration of this requirement is shown in S v Kearney 1964 (2) SA 495 (A) where the accused, an employee of a company, had confessed to theft to a shareholder’s attorney, the court held that the confession was not privileged because the accused had not made the statement for the purpose of obtaining legal advice.
[11] Lawsa Vol 9 First Reissue, para 551(1).
[12] Lawsa Vol 9 First Reissue, para 551(1).
[13] For instance, when he relies on what was communicated as a defence or where there is an element of publication that warrants an inference that a privileged person no longer regards the contents of communication as secret
[14] This was confirmed by the court in United Tabacco Companies Ltd V International Tabacco Co of Sa Ltd 1953 (1) SA 66 (T) who approved the opinion in Jones v Great Central Railway Co[14] where the court held that ‘documents that come into existence in the business of the client are not protected from disclosure because they may reach the hands of the legal advisor or because litigation has commenced
[15] Lenz Township Co (Pty) Ltd v Munnick & Others 1959 (4) 567 (T) at 574