Client-lawyer privilege is a widely respected though not universal principle across legal systems the world over. Many laypeople understand that this privilege is a legal protection that prevents lawyers from being forced to divulge their client’s communications, even to a court of law. However, practices surrounding this privilege are generally guided by strict frameworks that can differ within different jurisdictions. Indeed, many jurisdictions do not recognise the existence of this privilege at all.
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Fortunately, the confidentiality of communications between a client and their criminal defence lawyer is a recognised legal principle in Singapore. As with many other legal systems based on English common law, Singapore’s legal system explicitly provides this confidentiality through the principle of legal professional privilege (LPP). The LPP is a direct analogue of the “Attorney-Client Privilege” that is recognised in other legal systems.
When Is the LPP Applied?
Under sections 128A, 130, and 131 of the Evidence Act 1893, the principle is broadly applied to all legal cases, including for communications involving foreign-qualified lawyers in Singapore. However, the principle can be especially pertinent in high-stakes criminal cases. If you ever find yourself in need of a criminal defence lawyer in Singapore, you can rest assured that whatever you tell them, whether in person or over correspondence, will be protected under LPP—with certain limitations.
LPP in Singapore is generally considered to have two main forms: legal advice privilege and litigation privilege. Knowing the nuances between these two forms can give clients a more realistic appreciation of the protections they can expect in different circumstances.
Legal Advice Privilege
Legal advice privilege protects all confidential communications between a lawyer and their client made in the course of seeking or providing legal advice. This privilege ensures that clients can communicate candidly with their lawyers, fostering a trustworthy legal relationship. This principle is enshrined in sections 128 and 131 of the Singapore Evidence Act.
- Section 128: This section prevents lawyers from disclosing any communications made to them by or on behalf of their clients. This includes the contents of documents exchanged as part of the lawyer’s professional capacity and also any advice given to the client.
- Section 131: This section grants clients the right to not disclose any legal advice they have received from their legal counsel. In this provision, clients cannot be compelled by authorities or even courts to reveal confidential communications or documents related to the legal advice they have sought.
Litigation Privilege
Litigation privilege applies to communications and documents created for the dominant purpose of litigation. The privilege still applies whether the litigation is pending or anticipated.
Critically, unlike legal advice privilege, litigation privilege can extend to communications with third parties so long as they are made for the primary purpose of litigation.
This form of privilege is recognised under both common law and is implied within Section 131 of the Evidence Act.
- Common Law Basis: Previous rulings in Singapore courts have upheld that litigation privilege exists in common law and that Section 131 of the Evidence Act hints at the application of the privilege. This means that communications made when litigation is reasonably anticipated or ongoing are protected, thus giving parties the right to not reveal legal preparations to their adversaries.
- Requirements for Litigation Privilege: For litigation privilege to apply, there must be two elements: a reasonable prospect of litigation, and the communications must be primarily for the purpose of litigation. Provided that communications are made in the context of litigation, this protection covers all communications, regardless of their confidentiality.
Limitations of Legal Professional Privilege
While Singapore’s LPP provides a very strong basis for protecting client-lawyer communications, it is not absolute. There are multiple circumstances where LPP may not apply.
These limitations include but are not necessarily restricted to the situations below:
- Loss of Confidentiality: LPP does not apply to communications that have lost their confidentiality (including through unintentional information leaks) or have been disclosed in open court proceedings.
- Communications with a Non-Legal Context: Communications that do not occur in a legal context, such as administrative advice, are not covered by legal professional privilege.
- Waiver by Client: LPP is ultimately a privilege afforded to clients, not lawyers. Therefore, the LPP can be waived by clients, either explicitly or implicitly. Such actions as failing to maintain reasonable attempts at confidentiality when communicating to third parties can be ruled as an implicit waiver of LPP.
Impacts of LPP on Effective Legal Representation
More than just being a well-established legal principle, the legal professional privilege is crucial in providing clients with effective legal counsel. Taking a wider view of things, it can also be argued that the integrity and credibility of Singapore’s legal system are dependent on the maintenance of this privilege. The legal environment created by the LPP makes it easier for clients to freely seek and receive effective counsel that can make a positive difference in their case.
However, clients must understand that LPP remains a privilege and is subjected to considerable limits. Understanding the extent of the LPP can, therefore, be considered essential, both for putting up an effective case and for building productive relationships with one’s legal counsel.
