Definition
The principle of legal professional privilege is not accepted by the Moroccan regulatory system, as this concept could exist in jurisdictions under common law.
That said, Moroccan law establishes, through the principle of professional secrecy, the principle of the security of the confidentiality of information.
Legal security of information confidentiality is guaranteed from a technical point of view, not with regard to the quality of the information itself. Consequently, legal professional privilege does not assess the protection of a document by its substance, but by the quality and position of its author and/or its receiver.
The concept of professional confidentiality is set out in Article 446 of the Moroccan Criminal Code, which states that: ‘All persons entrusted with secrets are forbidden from revealing them by virtue of their rank or occupation or work.’ Failure to comply with this law is punishable by one to six months’ imprisonment and a fine of between 1,200 and 20,000 (approximately EUR 120 to 2,000).
In addition, the legal professional privilege is covered by Article 36 of Dahir 1.08.101 of 20 October 2008, which imposes Law 28-08 on the organisation of the career of lawyer, preventing lawyers from revealing any details in violation of the legal professional privilege.
Legal professional privilege in the sense of civil litigation
Article 5 of the Moroccan Civil Procedure Code specifies, in the form of civil proceedings, that the litigating parties must maintain good faith during the litigation process. This concept does not, in fact, mean that the parties have disclosure responsibilities, although this may be the case in certain civil cases under common law.
In the context of commercial litigation, even if this evidence is against their interests, a judge can ask a party to disclose evidence. That said, if the document is protected by professional confidentiality, that is, if it is, for example, a correspondence with its attorney, the requested party may oppose professional secrecy and refuse to reveal the evidence.
Legal professional privilege in the sense of judicial inquiries
In compliance with Article 36 of Dahir 1.08.101 referred to above, lawyers must protect the confidentiality of the criminal investigation and refrain from revealing any details collected from the files or from any objects, records or letters relating to the investigation in progress (ie emails, correspondence, notes, advice, and preparatory documents). In this case, this clause protects lawyers against any request made by the judicial or administrative authorities for information which is covered by legal professional privilege.
As an added protection, without the intervention of a judge or a public prosecutor, the examination or seizure of a lawyer’s office by judicial police officers cannot take place.
An significant exception to the principles of legal professional privilege is provided for in the amended and completed law n° 43.05 against money laundering. According to that rule, when such information is demanded by the authorities responsible for investigating money laundering, legal professionals cannot refuse to reveal confidential information. Moreover, when suspected of money laundering activities when working on behalf of their employers, this statute imposes a disclosure requirement on legal professionals.
Legal professional privilege scope
The legal professional privilege security of a document shall not be determined by the date of its production, nor by its form or content, but by the quality and function of its author and/or its receiver. Therefore, for correspondence between a lawyer and client, legal professional privilege exists regardless of the timing of development and the type of the contact.
In addition, legal professional privilege often extends to correspondence between two lawyers about the matters of their respective clients, unless the lawyers specifically say that they are ‘not private’ in their communications.
Are legal professional privilege-protected interactions with in-house counsel?
Moroccan law does not attribute a special legal status to in-house counsel and, thus, this work does not benefit from the privileges given to lawyers.
In-house counsel are bound by the provisions of Article 446 of the Moroccan Penal Code referred to above, but, unlike lawyers, if properly ordered to do so by a judicial or administrative authority, the in-house counsel does not invoke this article to refuse to reveal information in their possession.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
From the point of view of an internationally trained lawyer, if the contact with his client enjoys legal professional privilege in compliance with his national law, he shall have the right to refuse to reveal such details to the Moroccan authorities.
From the client’s point of view, we are of the opinion that they would not be able to benefit from the legal professional privilege as if the lawyer were Moroccan, because the Moroccan authorities will claim that only Moroccan lawyers are entitled to the Dahir 1.08.101 of 20 October 2008 enacting Law 28-08 organizing the profession of lawyer and the legal professional privilege therein.
When the right is waived?
The security of legal privilege has been placed in order to safeguard the client’s interests. Thus, it can be waived by the customer. There is no clear format for that, given that the waiver is explicit and made by the consumer with full knowledge of the implications of such a waiver. The lawyer’s responsibility is to advise the client of the implications of such a waiver.