IT is very important for enforcement authorities to respect lawyer-client privileges. Enforcement authorities should not compel the disclosure of such information when they carry out investigations.  

What is a lawyer-client privilege? In common law jurisdictions and many countries including Malaysia, it is known as a legal professional privilege protecting all communication between a professional legal adviser and his client from being disclosed without the permission of the client. 

In Malaysia, this particular privilege is provided under the Evidence Act 1950 [Act 56]. Section 126 of this Act provides for “professional communications”. Under subsection (1), it states that “no advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment”.  

What is the benefit of having this type of privilege? The answer is that it encourages the client to disclose all necessary information to the lawyer without worrying about it being leaked.  

Legal professional privilege is divided into two parts, namely legal advice privilege and litigation privilege. Legal advice privilege arises out of the relationship between a client and his lawyer. As is evident from the name, this type of privilege relates to the provision and receipt of legal advice. No legal proceedings need to exist or be in contemplation for the legal advice privilege to apply. Litigation privilege extends further than legal advice privilege, to communications which are for the purposes of or leading to evidence for use in legal proceedings. This applies to communications with third parties as well.  

There is an exception to the privilege. The privilege cannot be used where the communication is used to facilitate a crime. This has been highlighted under Section 126 (1) (a) and (b) of the Evidence Act 1950 [Act 56].  

Other legislation also provides some kind of exception to the privilege. Section 46 of the Malaysian Anti-Corruption Commission Act 2009 [Act 694] and Section 47 the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [Act 613] both contain similar provisions governing disclosure by advocates and solicitors. Both sections provide that an application may be made to a high court judge in relation to an investigation into offences under the respective Acts, to order disclosure by an advocate and solicitor. Such disclosure is limited to information available to that advocate and solicitor in respect of any transaction or dealing relating to property liable to seizure under the respective Acts.  

However, both provisions contain a proviso, in subsection 46 (2) of the MACC Act 2009 and subsection 47 (2) of AMLATFA 2001, that limits the extent of disclosure required. Both provisions do not permit disclosure of “privileged information or communication which came to his (the advocate and solicitor) knowledge for the purpose of any pending proceedings”.  

* Muzaffar Syah Mallow reads The Malaysian Insight.  

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.