27 February, 2012
SUMMARY
The Evidence (Amendment) Bill 2012 was read for the first time in Parliament on 16 January 2012 and passed on 14 February 2012. One of the notable changes to the Evidence Act is the extension of legal professional privilege to in-house counsel.
This article discusses what legal professional privilege encompasses and the recent amendments to extend legal professional privilege to cover communications with in-house counsel.
LEGAL PROFESSIONAL PRIVILEGE
In Singapore, legal professional privilege is codified in s128 and s131 of the Evidence Act (Cap. 97). Communications involving advocates or solicitors (“lawyers”) and legal professional advisers are expressly addressed in both provisions respectively.
There are two aspects of legal professional privilege: legal advice privilege and litigation privilege.
Legal advice privilege
Legal advice privilege, which exists whether or not litigation is contemplated, protects communications between a lawyer or a legal professional adviser and his client for the purpose of obtaining legal advice. Such communication must be confidential in nature.
This type of privilege does not apply to communications from third parties to the lawyer or legal professional adviser unless they were made as an agent for the client.
The object of legal advice privilege is to promote full, free and frank communication between lawyers and their clients.
Litigation privilege
Litigation privilege exists when there is a reasonable prospect of litigation, and protects communications and documents made for the dominant purpose of litigation.
In contrast to legal advice privilege, litigation privilege applies to every communication, whether confidential or otherwise, as long as it is for the purpose of litigation. It also applies to communications from third parties to the lawyer or legal professional adviser whether or not they were made as agent of the client.
Litigation privilege enables parties involved in litigation to prepare their contending positions in private, without fear of early disclosure.
LEGAL PROFESSIONAL PRIVILEGE AND IN-HOUSE COUNSEL
Prior to the amendments, it was unclear whether the definition of “legal professional adviser” in s131 of the Evidence Act covered in-house counsel. The Singapore courts have also not had the opportunity to consider if legal professional privilege extends to communications with in-house counsel, though this appears to be the position under common law.
Parliament has clarified the position by extending legal professional privilege to communications with “legal counsel”, defined under the new s3(7) of the Evidence Act as “a person… who is an employee of an entity employed to undertake the provision of legal advice or assistance in connection with the application of the law or in any form of resolution of legal disputes”, ie. in-house counsel, or a legal counsel employed by public agencies.
Indeed, under the new s128A of the Evidence Act, such “legal counsel” shall not, except with the consent of the entity which he is employed by,:
(a) disclose any communication made to him in the course and for the purpose of his employment as in-house counsel;
(b) state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his employment as in-house counsel; or
(c) disclose any legal advice given by him to the entity or to any officer or employee of the entity, in the course and for the purpose of his employment as in-house counsel.
Notably, under the new s128A(4) of the Evidence Act, communications between an in-house counsel employed by a corporation, and a corporation deemed to be related under s6 of the Companies Act (Cap. 50) are privileged as well. Further, the amended s129 of the Evidence Act provides that s128 and the new s128A applies to interpreters, and persons who work under the supervision of legal professional advisers.
In this regard, s131 of the Evidence Act has also been amended to expressly make clear that “legal professional adviser” includes “legal counsel” as defined under the new s3(7) of the Evidence Act.
EXCEPTIONS TO LEGAL PROFESSIONAL PRIVILEGE
Certain situations are not covered by legal professional privilege, for example:
(a) when communications are made in furtherance of any illegal purpose; or
(b) when there is any fact observed by any lawyer or in-house counsel in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment as such lawyer or in-house counsel. In this situation, it is immaterial whether the attention of the lawyer or in-house counsel was or was not directed to that fact by his client or his employer respectively.
COMMENT
The amendments to the Evidence Act have now made clear that communications with in-house counsel are covered by legal professional privilege. This is already the position under common law (see, for example, Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1972] 2 QB 102). The amendments therefore bring the statutory position in Singapore in line with that under common law.
These amendments are important as the in-house counsel is often the first person the company turns to for advice when an incident arises. The company can now do so in full confidence knowing that such communication is protected by privilege.
However, there are important limitations to take note of, apart from the exceptions to legal professional privilege set out above. Some of the limitations are:
(a) only communication with in-house counsel in their legal capacity (as opposed to executive or administrative capacity) is privileged from disclosure. This distinction is important where the in-house counsel is entrusted with multiple roles in the company apart from being a legal adviser; and
(b) the new s128A(4) of the Evidence Act extends privilege to communication between an in-house counsel of a corporation with its related corporations as defined under s6 of the Companies Act. A limited liability partnership falls outside the definition. Therefore, if one of the corporation’s related entities is a limited liability partnership, privilege will not attach to communication with that limited liability partnership.
In such instances, it may be advisable to consult external counsel to ensure that the communication is covered by privilege.
Where internal investigations are to be carried out arising from a complaint or an incident, in-house counsel or external legal counsel (if the company does not employ any in-house counsel) should be involved as soon as possible to spearhead the investigation and give advice. By so doing, a stronger argument can be made that the findings of the internal investigation, or any reports produced in the course of such investigation, will be covered by privilege. In the same vein, in-house counsel (or external legal counsel where appropriate) should be kept copied as soon as possible on internal e-mail correspondence discussing issues which are potentially litigious or which potentially require legal advice. This will help buttress the argument that such communication is covered by legal professional privilege.
For further information, please contact:
Gary Low, Director, Drew & Napier