The foundation of the relationship between a lawyer and his Client, in the effective representation by a lawyer of his Client's interests, is the privilege of confidentiality.
The lawyer-Client privilege of confidentiality, which has its roots back to the days of Elizabethan England, encourages Clients to speak honestly with their lawyers, so the latters can give legal advice and stop their Clients, who are contemplating questionable acts.
The necessary elements to establish the existence of the lawyer-Client privilege of confidentiality are:
1. The person, who claims the privilege, is or sought to become, a Client; and
2. The person to whom the communication was made:
i. Is a member of a bar association or a licensed lawyer, or advocate; and
ii. In connection with the particular communication, is acting as an attorney; and
3. The communication was for the purpose of obtaining legal advice.
The main exceptions to the privilege in most jurisdictions are:
- The communication was made for the purpose of committing a crime.
- The Client has waived the privilege by, for example publicly disclosing the communication.
- The communication was made in the presence of persons, who were, neither a licensed lawyer, nor a client.
WHEN THE PRIVILEGE MAY NOT APPLY?
When a licensed lawyer is not acting primarily, as an attorney but for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally, does not apply.
NO PRIVILEGE WITH COMMUNICATIONS WITH IN-HOUSE LAWYERS
The European Court held in the AKZO NOBEL case, that internal communications with in-house lawyers, even if they are enrolled as members of a Bar, or Law Society, do not enjoy the fundamental protection, afforded in the EU, to communications between, an independent lawyer and his client.
According to the above decision of the European Court, in-house lawyers are not capable of independent judgment, under EU professional standards.
There is a structural risk, that an enrolled in-house lawyer, will encounter a conflict of interests, between his professional obligations, and the aims and wishes of his Company, on which he is more economically dependent, and with which, as a rule, he identifies more strongly, than an external lawyer.
PRIVILEGE OF CONFIDENTIALITY IN CYPRUS
Article 17 of the Constitution of the Republic of Cyprus, provides:
- That every person, has the right of respect for, and for the secrecy of, his correspondence and other communication, if such other communication, is made through means not prohibited by the law.
- That, there shall not be any interference with the exercise of this right, except in accordance with the law, and only in cases of convicted or unconvicted prisoners, and business correspondence and communications of bankrupts, during the bankruptcy administration.
Pursuant to the Advocates Law of the Republic, Courts and public authorities, should respect and protect the legal professional privilege, as a fundamental right.
In the light of the decision of the European Court in the AKZO CASE – (which is binding in Cyprus) – the internal communications with in-house lawyers do not enjoy the privilege of confidentiality.
Pursuant to the Advocates Law of the Republic of Cyprus, the in-house lawyers are not entitled to be registered as members of the Cyprus Bar Association, neither are entitled to represent clients and/or appear before Cyprus Courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
