Definition
In Hong Kong, a substantive right available under legislation (Basic Law) and common law is legal professional privilege. The legal system in Hong Kong is based on common law in English. The rationale for legal professional privilege is the interest of public policy in the need to promote the administration of justice by facilitating and allowing a client to contact their lawyer thoroughly and freely, and in complete trust, understanding that without their permission, what they say to their lawyer would never be reported to a third party.
In this country, two principal classes of documents and communications are secured, namely:
Those who are privileged, whether action has been contemplated or ongoing or not (privilege of legal advice), and
Public interest privilege still exists. This right is in respect of anticipated litigation in which, while not all such persons have been made parties to the action, many people have a shared interest. Without waiving their right to claim attorney-client privilege, they can exchange privileged information.
Common to these types of privileges is that, unless the related correspondence or document is confidential, certain privileges can not be asserted. Documents which are in the public domain are also not privileged. Moreover, if the related correspondence ceases to be confidential, privilege is lost. For example, if a client sends an email to an accountant from their lawyer, the email loses confidentiality and will no longer be deemed privileged.
Privileges occur in Hong Kong in the form of civil cases, criminal inquiries and regulatory authorities’ investigations.
Civil action parties or any criminal prosecution or investigation by any regulatory body shall be entitled not to reveal any communications and records protected by the privilege (and such privilege has not been waived).
Privilege does not apply to situations where, as a step in a criminal or unlawful trial, the paper has come into being. However, there must be a definite charge of fraud or illegality in order to bring a case into the scope of this exception, or a prima facie case must be brought.
Legal professional privilege scope
Letters and other messages that move between a group and its counsel are, if they are, privileged from production and sworn to be:
Confidential
Writings of an attorney, and
for the purpose of obtaining legal advice or support for the client.
The security of correspondence with an independent third party is not given. However, the right of legal advice does apply to knowledge that the lawyer receives from a third party in a professional capacity and that the lawyer transmits to his client.
A document or correspondence must also be made for the purpose of receiving legal advice before legal advice, in addition to confidentiality.
Privilege may be applicable.
The object of obtaining legal advice has been narrowly construed. If, as part of a mechanism to keep both updated, information is exchanged between a lawyer and their client so that advice can be requested and given, legal professional privilege will be attached. In addition, legal advice is not limited to informing the client the law; it can provide advice about what can be done in the particular legal sense prudently and sensibly.
Where the client appoints staff to contact their counsel, for the reason of legal advice privilege, such staff are the client. Legal advice privilege would also attract information given to the lawyer by some other employee of the client for the dominant reason of receiving legal advice.
Where legal advice privilege extends to attorney-client correspondence, it is also privileged to have internally circulated documents or parts of documents reporting those communications.
What is covered by immunity in litigation?
Privilege in litigation is narrower than privilege in legal advice. This involves not only communications between a lawyer and his or her client, but also communications between a lawyer and his or her non-professional agent, a lawyer and a third party, or the client and his or her agent or a third party, provided that:
They came into being after the beginning or anticipation of litigation, and are for the dominant reason of offering or receiving legal advice, obtaining or gathering evidence or obtaining information that could contribute to the collection of such evidence. Until litigation privilege may be extended, these two conditions must be met.
Litigation applies to litigation, arbitration, administrative proceedings and all other adversarial proceedings of court and tribunals. As compared to investigative or inquisitorial, it must be ‘adversarial’. Therefore, it is impossible that litigation privilege will be asserted where a case is simply fact-gathering or where a tribunal is an administrative one.
The application of the ‘dominant intent’ test can be problematic: if the related communication came into being for more than one purpose, and it can be reasonably argued that any such purpose is to seek advice in anticipated litigation in evaluating the dominant purpose, it is necessary to turn to the facts of the specific case in determining at what point. In the past, Hong Kong courts have investigated ’cause’ from an impartial point of view, analyzing all relevant facts, including reference to the actual author’s or actual author’s intention.
At the moment when the document is brought into being, the author of the related document (or the individual under whose guidance it has been made).
If, for the purposes of the litigation, a document or correspondence has not come into being but is still in existence before the litigation is contemplated or commenced, the litigation protection does not extend even if, for the purposes of the litigation, it was received by the client or their counsel. Therefore, a pre-existing document not entitled to the right of legal counsel does not become privileged simply because it is handed over for litigation purposes to a lawyer.
Are legal professional privilege-protected interactions with in-house counsel?
Yes. Both members of the legal profession are included in the definition of ‘professional lawyer’ for legal advice and litigation privilege purposes:
The Solicitors
Barristers
In-house attorneys, and in-house lawyers
Foreign attorneys
Therefore, correspondence between the in-house counsel and the management and the staff of the same organization are prima facie entitled to legal professional privilege.
However, the right of legal advice can not be defined adequately based on the mere fact that a party to a conversation is a lawyer. The solicitor must behave as a lawyer in a professional capacity. Therefore, if something other than the law is consulted by an in-house counsel or if legal advice has been offered on a social rather than professional basis, the right of legal advice would not be attached to such advice.
In addition, if, apart from being a legal advisor, they hold other positions within the organization, an in-house lawyer should take extra caution if (such as an executive or operational role). If an attorney is consulted on commercial matters in his role as a business adviser, the right of legal advice would not extend.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Yes. The privilege of legal advice exists between a foreign lawyer and his client to the same degree as the privilege of legal advice exists between a Hong Kong lawyer and his client. The approach to deciding the topic of right of legal advice is the same as that followed for communications with lawyers from Hong Kong.
Why is legal professional privilege waived?
Right is the privilege of the defendant and not of the lawyer in all cases, and it can only be waived by the client explicitly or indirectly. Privilege shall be assumed to have been waived if the record or correspondence in question is included in the depositions submitted in the course of a legal case or in the transcripts of other notes of the proceedings. The principle of partial waiver of right is also adopted by Hong Kong law. If, for a limited reason only, a protected document is disclosed it does not follow that the privilege is automatically waived.