Definition
The primary source of law in the Kingdom of Saudi Arabia (KSA) is “Shari’a”, Islamic law. Saudi Arabia also has rules and regulations.
Which are provided to manage most areas of everyday life by either regulatory or government authorities, derived from Shari’a. With regards to legal problems, professional privilege, Saudi Arabia’s Legal Profession Legislation and Professional Code of Conduct for Lawyers contain provisions that cover all interactions between lawyers and their clients in relation to legal professional privilege.
As set out in the Basic Law of Government, the constitution of KSA is Shari’a. The Shari’a does not apply to lawyers in this regard, but applies to anyone who has been granted attorney power (‘Wakalah / Power of Attorney’). Power of attorney (hereinafter referred to as POA) is a special permissible document granted to a Saudi Arabian individual or entity for use in Saudi Arabia which, in order to be effective, must be produced before a notary public or other approved official. In various ways, including civilian, criminal and competition compliance, the POA will establish rights and obligations. During the POA, any directions from the grantor of the power provided for in the POA must be taken into account by the lawyer. The attorney has an absolute responsibility to behave at all times in the best interest of the grantor. A lawyer who acts illegally may be found responsible for damages directly and criminally. When exercising his authority, the lawyer must keep and maintain correct records and accounts for all deals and transactions. Failure to do so is an infraction.
The principles of legal professional privilege and ‘Without Discrimination’ communications do not exist per se in many civil law jurisdictions in the area, as lawyers are bound by confidentiality obligations. Under the Saudi Legal Profession Rule, for example, a lawyer should not reveal a secret of which he or she has been entrusted or has become informed in the process of practicing his or her profession, unless such disclosure constitutes a breach of the Shari’a provision or if an official body has given an official order or for the prevention of a crime. The critical material information collected by a lawyer is deemed “conditional” by virtue of their occupation, and not for public disclosure. Such an attorney is obligated not to reveal confidential information obtained from clients, except to the degree that they are required to disclose relevant information before the Saudi courts in order to protect their clients.
Legal professional privilege scope
Lawyer-client privilege protects the disclosure of all correspondence between a lawyer and his clients without the client’s permission. The right is the client’s and not the lawyer’s. The Legal Profession Rule and the Ethical Code of Ethics for Lawyers provide that a lawyer must refrain from revealing to the public (such as newspapers), unauthorized persons, or anyone is likely to publish any confidential records, details and decisions. The object of this legal principle is to protect the right of a person to access the justice system by facilitating full disclosure to lawyers without fear that any disclosure of those communications can in the future prejudice the client. If an attorney does not serve solely as a lawyer, but, for example, as a business consultant, a member of the board of directors, or in another non-judicial position, then legal privilege does not normally apply. The right, and not the underlying data, preserves sensitive correspondence. For example, if a client has already revealed sensitive information to a third party who is not a lawyer and then gives a lawyer the same information, the protection will still protect the lawyer’s communication, but will not protect the third party’s communication.
With regard to documents or facts which the lawyer may demonstrate, a lawyer may not have any obligations under the scope of legal professional privilege:
It was in the public domain at the time it was revealed to the lawyer; or, by no fault of the lawyer, it entered the public domain after the time it was disclosed to the lawyer.
Does legal professional privilege protect interactions with in-house counsel?
For all people who practice law, including in-house attorneys, the Legal Profession Law applies and they are handled in the same manner as lawyers working in law firms. All interactions with in-house lawyers are, therefore, covered by legal professional privilege. It is necessary to remember, however, that the Rule of Legal Profession only applies to Saudi citizens. If in-house attorneys are non-nationals, they will be subject to their home countries’ professional obligations.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Unless employed by a licensed Saudi law firm and approved by the Ministry of Justice, non-Saudi national trained attorneys are not permitted to practice law in Saudi Arabia. As legal professional privilege is binding on Saudi law firms, it would be binding on eligible non-national lawyers. The Saudi law firm will be held accountable before the Ministry of Justice in the event of a violation of legal professional privilege by a non-national skilled lawyer and then the firm could take reasonable legal action against its non-national lawyer in compliance with the employment contract and the Labour Law. In addition, in compliance with the terms of agreements concluded between Saudi Arabia and other countries, eligible foreign lawyers may be entitled to practice law.
When the is right waived?
If sensitive conversations are revealed to third parties, legal professional privilege can be waived. Depending on the case being adjudicated, other limitations to legal professional privilege will apply. In accordance with the Shari’a laws in force, the Legal Profession Law states that a lawyer shall practice the profession. A lawyer shall refrain from any act which compromises the integrity of the profession and complies with the rules and instructions applicable. A lawyer shall not apply to specific matters relating to an opponent or representative of a client and shall abstain from any offensive language or allegation relating to the substance of his or her written or oral argument. No sensitive information conveyed to them or made known to them in the process of practicing their practice shall be revealed by a lawyer even after the expiry of their power of attorney, unless such non-disclosure constitutes a breach of the provisions of the Shari’a. Similarly, without a compelling excuse, a lawyer does not refuse to represent his client until the case has been resolved.
Notwithstanding the right of the lawyer-client, a lawyer may reveal such documents/information to the degree that such disclosure is needed by an official order of a court or other competent governmental bodies, if such disclosure prevents the commission of a crime and, finally, if confidential information relating to a conflict occurs between a lawyer and its client and disclosure.