Legal Professional Privilege (“LPP”) is a fundamental right that protects all communications between an advocate and a client from being disclosed without the permission of the client. It is a privilege granted to the client and not to the advocate.
LPP guarantees the proper functioning of any system based on the rule of law and the administration of justice. This legal principle encourages a client to freely entrust the respective advocate with all pertinent and relevant circumstances including the disclosure of all documents and records without the fear that any disclosure of such communication may
prejudice the client in the future. Furthermore, it ensures as far as practicably possible, that the advocate has a full and clear picture of the context for which advice is being duly sought.
This vital principle has long been protected by the legal profession, vigorously defended by the judiciary and fully respected by the legislature. LPP is pivotal since it creates a balance between the power of a state and the rights of an individual.
I. What material constitutes legal advice privilege?
In terms of Article 350(1) of the Criminal Code any communication between professional legal adviser and his client or any person representing his client and any document or record enclosed with or referred to in such communication and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, constitutes material endowed with legal advice privilege.[1]
To further reinforce such notion, advocates and legal procurators are exempt from being compelled to give evidence about the circumstances or facts known to them from the professional confidence which a client may have placed in seeking their advice or assistance. [2] A breach of such privilege by any advocate or legal procurator is tantamount to a criminal
offence punishable with a fine and/or imprisonment.
II. Are there any exceptions to the rule?
The Criminal Code [3] provides an exception to LPP, precisely in Article 257, which provision allows the disclosure of information to a public authority without committing an offence and where such disclosure is compelled by law and made to a public authority, when the matter refers to certain offences. This exception, however, does not apply to a member of the legal
profession, who remains bound by the duty of confidentiality.
This position is also endorsed in the Professional Secrecy Act [4] which allows a person to disclose in good faith secret information to a competent public authority in Malta in the reasonable belief that such disclosure is necessary for the purpose of preventing, revealing, detecting or prosecuting the commission of acts that amount or are likely to amount to a criminal offence, or to prevent a miscarriage of justice.
III. Can LLP be overridden in investigations?
The overall widening investigative powers granted by law to enforcement agencies and their ability to search and investigate offences, such as those under the Prevention of Money Laundering Act [5] have not diluted or in any way diminished the LLP. On the contrary, they have further reinforced that privilege.
In fact, an investigation order issued in terms of Article 4 of the Prevention of Money Laundering Act [6] , has very broad parameters, but is prescribed where legal professional privilege is concerned and will not confer any right:
“To the production of, access to, or search for communications between an advocate or legal procurator and his client, and between a clergyman and a person making a confession to him, which would in legal proceedings be protected from disclosure by [the above-mentioned] article 642(1) of the Criminal Code or by article 588(1) of the Code of Organization and Civil Procedure.”
In line with this body of law therefore an advocate cannot be compelled to disclose information otherwise covered by professional secrecy, and no authority may compel an advocate to breach his/her duty of professional secrecy, and thereby commit a criminal offence. This includes:
- Any competent law enforcement or regulatory authority investigating a criminal offence or a breach of duty;
- The Security Service established by the Security Service Act;
- A magistrate in the cause and for the purposes of in genere proceedings; and
- By a court of criminal jurisdiction in the course of a prosecution for a criminal offence.
LLP has been further protected with the implementation of recent legislation relating to criminal investigations. The enactment of the Proceeds of Crime Act empowers the director, and any member of the Directorate staff of the Asset Recovery Bureau (established by the Act), to seek from any person or authority any information with regard to any person or with regard to any matter, and the person in possession of such information shall notwithstanding the provision of any law to the contrary be obliged to give the Director or any such member all information so requested, these powers exclude advocates or legal procurator from being
compelled to disclose information derived from professional confidence.
IV. In which instances can LPP be raised?
It is an advocate’s duty to inform and advise their clients about their right to assert LPP. However, such right is not an unfettered right which can be asserted in all circumstances and therefore advocates are duty bound when advising clients to properly set out when actual grounds for asserting LPP exist.
In terms of Maltese legislation, LPP cannot arise where an advocate’s assistance has been sought to further a crime or fraud, or other equivalent conduct for a criminal purpose. Rather, many of the circumstances where LPP applies are precisely those where individuals or companies are trying to do the right thing through seeking legal advice.
V. Asserting LPP
Advocates are duty bound to abide by the law, thus including the legal requirement to keep client’s information confidential. Hence an advocate must not volunteer information about a client to law enforcement agencies and such information may be disclosed only if:
- the crime exception applies; or
- the client waives such privilege or consents.
The mere allegation by an investigating officer or a public authority that certain communications are disclosable because they evidence the furtherance of a criminal purpose is not sufficient to displace the legal professional privilege and the duty of professional secrecy.
Similarly, the powers granted by law to an inquiring magistrate in the course of an inquiry in search of the truth can and should only be exercised and conducted within the limitations provided for by law. In other words, if the search exceeds the parameters envisaged by the law, then LPP shall apply.
To this effect, LPP can under no circumstance be overruled, without first having established that the criminal exception exists or that there are compelling grounds that would convince an inquiring magistrate that amongst client materials held by an advocate there is evidence of criminal purpose.
[1] Chapter 9 of the Laws of Malta.
[2] Article 588(1) Chapter 12 of the Laws of Malta, Code of Organisation and Civil Procedure.
[3] ibid.
[4] Article 6A of Chapter 377 of the Laws of Malta [5] Chapter 373 of the Laws of Malta.
[6] ibid.
