Legal Professional Privilege

By nature, consultations with your attorney or legal practitioner may sometimes need you to reveal information which may, if revealed to the public, harm your reputation. It is important then that the information you share with you attorney remains confidential.

It is important not to confuse legal privilege with an undertaking of confidentiality. Privilege arises as a matter of law, whereas a confidentiality undertaking is a contract. An agreement between parties communications will be treated as confidential does not preclude a court from requiring the disclosure of documentation that is relevant to a matter forming the subject of litigation

Below is an exposition of the concept of legal professional privilege and the two components which it comprises of:

1. Privilege during Legal Consultations

 

Legal Advice Privilege protects certain communications between legal advisers and their clients, provided that certain criteria are met, namely:

  • The adviser must have been acting in his professional capacity as a legal professional;
  • Such communication must have been made in confidence;
  • The communication to the client must have been made for the purpose of obtaining or giving legal advice and,
  • The advice should not have been sought for an unlawful purpose.

 

2. Privilege in Litigation

 

Litigation Privilege protects the communications between legal advisers and their clients on the one hand and third parties on the other, provided that certain criteria are met, namely:

  • The adviser must have been acting in his professional capacity as a legal professional;
  • Such communication must have been made in confidence;
  • The communication must be made for purposes of being placed before the legal adviser in order to enable him/her to advise;
  • The communication must be made for the purpose of intended or contemplated litigation and,
  • The communication should not be for any unlawful purpose.

 

3. Privilege during Negotiations

Bona fide negotiations for settlement of a dispute which are made expressly or impliedly and being without prejudice fall within the category of being privileged.

 

Legally Speaking

 

If documents are privileged (as relating to any of the above aspects), the contents of such documents needn’t be disclosed, the existence of a privileged document must be disclosed.

If privileged documents or information such as negotiations come before a court and the presiding officer has indeed seen it, same cannot be used in the proceedings at court and the presiding officer will ignore the information contained therein.

 

At Du Toits Attorneys and Mediators we only subscribe to the strictest professionalism and attorney-client privilege.

If you wish to come and see us about any issue you may need assistance with, we will treat your information with integrity and confidentiality.

Feel free to contact us to arrange a consultation so we may assist with your matter.