In recent judgments, the English authorities have relied on the view that solicitor-client privilege is also linked to communications between an employer and the in-house lawyers employed by the employer if the disclosure would otherwise meet the privilege test, since there is no justified legal basis for limiting the scope of privilege to clients and lawyers in private practice. While solicitor-client privilege is absolute, there are special exceptions to the duty of confidentiality. An attorney may be authorized or required to disclose a client`s confidential information without the client`s consent for purposes which you can read here. Recent tax legislation and the Financial Intelligence Centre Act No. 38 of 2001 have been criticized for interfering with or conflicting with privileges. This tension has not been resolved. Nevertheless, solicitor-client privilege should always be invoked where it is appropriate to protect a client`s interests. Solicitor-client privilege is a client`s right to confidentiality of communications between a client and his or her legal counsel. Solicitor-client privilege belongs to the client, so the client`s intention determines whether the privilege applies.
Nevertheless, important distinctions must be made between the concept of confidentiality and solicitor-client privilege. The former relies on the person to whom the communication is addressed to maintain this trust. The latter is a right that a client can invoke to prevent disclosure and that the lawyer must respect as a duty to his client. Solicitor-client privilege is therefore a shield against disclosure. An opponent`s lawyer may force the inclusion of a document in the disclosure if it is not properly protected by solicitor-client privilege. In summary, clients can continue to confidently disclose secrets to their lawyers in order to obtain legal advice or in connection with litigation that is subject to the limited concerns set out in this article. Section 42A of the Tax Administration Laws (Amendment) Act 2015 requires a taxpayer relying on solicitor-client privilege to prove the validity of solicitor-client privilege by providing a list of detailed information, including but not limited to a description of each individual document that is not provided and full details about the lawyer. If, for any reason, inside information becomes public, there is no way to suppress its disclosure. Once control is lost, it is lost forever. For this reason, clients and their lawyers should ensure the protection of inside information. Implementation procedures are available to prevent threats of disclosure, but once the « cat is out of the bag, » it`s too late. In this context, lawyers and their clients should pay particular attention to what is communicated electronically, and confidential communications in particular should be password protected.
Currently, solicitor-client privilege in South Africa relates only to the solicitor-client relationship and does not extend to other professional relationships for any purpose (Trust Sentrum (Kaapstad) (Edms) Bpk v. Zevenburg). In particular, it was decided that the privilege did not extend to accountants (Jeeva v. Receiver of Revenue, Port Elizabeth), although it was argued in the South African Revenue Authority that solicitor-client privilege should be extended to accountants. The company obtained an urgent ban that prevented various media outlets from publishing the information contained in the document. As a result, the media asked the court to quash the order and were successful. It was concluded that the company could not invoke privilege to prevent the publication of the confidential information contained in the legal opinion. There are two types of solicitor-client privilege. First, communications from clients to lawyers for the purpose of legal advice are preferred.
Second, everything that is exchanged in the context of a dispute between lawyers and clients is covered by litigation. The right of authorization is only available to the customer. The lawyer must respect the duty of confidentiality because of solicitor-client privilege, but the client must assert the right to do so. Customers can therefore waive this privilege. The privilege belongs to the customer and must be claimed by the customer to be effective. While legal counsel may invoke privilege on behalf of the client, he or she acts as the client`s representative. Consequently, a copy of documents protected by professional secrecy in the possession of the client as a fictitious client in the legal relationship would enjoy complete protection within the meaning of professional secrecy. Everything you say to your lawyer is protected, isn`t it? False. There are situations where solicitor-client privilege does not apply in South Africa.
The customer`s waiver may be express or implied. However, it is important to understand that if a client discloses the confidential information, it may be implied that the information is no longer confidential and the lawyer – and the court – may accept that the privilege has been revoked or waived. Solicitor-client privilege is a legal privilege that allows a lawyer to keep communications with his client secret. An opposing legal team cannot request access to this information, either as part of a request for an investigation or by asking a lawyer to testify under oath. Privileged disclosure cannot be used as evidence or testimony in a trial. Personal communication between a client and his or her lawyer is considered privileged only if: The terms privilege and confidentiality are often used interchangeably. They overlap, but in law they are two different concepts. Confidentiality is a fundamental element of privilege. Loss of confidentiality results in loss of privileges. It is therefore important not to disseminate the preferred material too widely.
If you are circulating privileged material, it is important to mark the document as « confidential and privileged » and not for redistribution. Only a client has the right to waive privilege and authorize his or her lawyer to disclose information. A lawyer cannot waive privileges. Here`s how to understand the importance of solicitor-client privilege and how it differs from confidentiality. Litigation privilege refers to the communication between a lawyer and his or her client for the purposes of ongoing or anticipated litigation. Generally, privilege is exercised prior to legal proceedings upon disclosure with notice to the parties. The privilege can only be asserted by the person holding it or by his or her lawyer on behalf of a client. To the extent that a foreign lawyer is acting in a professional capacity and the client`s communication was confidential for the purposes of ongoing litigation or to obtain professional advice, communication is preferred and the same principles apply with respect to privilege as with respect to domestic lawyers and in-house lawyers. Confidentiality is a broader term than solicitor-client privilege. Information may be confidential even if it is not protected by legal privilege.
Essentially, solicitor-client privilege is what preserves lawyers` duty of confidentiality in court proceedings. The general rule in South African law is that communications between a lawyer and his client, as well as documents prepared by lawyers for their clients, cannot be transmitted without the client`s consent. Solicitor-client privilege (or simply « privilege ») may be invoked if the communication or document in question was (i) addressed to legal counsel, (ii) in a professional capacity, (iii) confidential, (iv) for the purposes of ongoing litigation or for the purpose of obtaining professional advice. The privilege applies to oral and written communications. However, confidential information can be used against a client in legal proceedings, while inside information – which is also confidential in nature – cannot do so unless ordered to do so by a court. The disclosure privilege therefore applies only to lawyers acting in that capacity and to no one else. As a precautionary measure, we always recommend that clients participate in internal discussions on this matter in order to establish solicitor-client privilege if it is possible that a matter will become contentious in the future. For similar precautions, communication through lawyers (or in a chain of emails with lawyers) minimizes the risk of loss of legal privilege. Solicitor-client privilege is a narrower term than confidentiality.
While records or information may be subject to confidentiality, they are not necessarily subject to privilege. For example, although confidentiality clauses are common in contracts, they are only binding on the contracting parties. While confidentiality is a component of privilege, it does not establish a privilege per se.
