Definition
The discovery process in Singapore’s civil, criminal and regulatory proceedings is subject to common law and statutory legal regulations.
Legal professional privilege can take two forms in common law, namely privilege in legal advice and privilege in litigation. The privilege of legal advice protects confidential communication between a lawyer and a client (or a client’s agent) for the purpose of providing or obtaining legal advice, regardless of whether litigation is contemplated or not. It does not protect communications between the attorney and third parties, unless those third parties were at that time acting as agents of the client. On the other hand, if the communication or document has been prepared in circumstances where there is a reasonable prospect of litigation, the communication or document will be privileged, even if it was passed between an attorney and a third party who did not act as the agent of the client. This form of privilege is known as privilege in litigation. In terms of the statutory rules, the extent of permissible disclosure of privileged communications is governed by sections 128 and 131 of the Evidence Act (Cap. 97). These provisions apply, whether civil or criminal in nature, to ‘judicial proceedings in or before any court’ in Singapore.
Section 128 provides that without the express consent of their client, no ‘advocate or solicitor’ is permitted to disclose any communication made to them in the course and for the purpose of their employment as such advocate or solicitor by or on behalf of their client, or to state the content or condition of any document, or to disclose any advice given in the course and for the purpose of such advocacy or solicitor’
This prohibition is extended to any ‘legal counsel in an organization’ by Section 128A. This involves legal counsel employed by ‘related’ corporate entities within the meaning of Section 6 of the Companies Act (Cap. 50).
Section 129 specifies that interpreters and other persons working under the supervision of legal professional advisers shall be subject to sections 128 and 128A.
Furthermore, Section 131 provides that no individual shall be obliged to disclose any confidential communication between himself and his ‘legal professional advisor’ to the court. The Evidence (Amendment) Act 2012 added a new section 131(2)(b) to the Evidence Act, which clarifies that in-house counsel includes the term’ legal professional adviser.’
Sections 128 and 128A also provide that any communication between a lawyer or solicitor and a client made in support of any illegal purpose, or any fact observed by a lawyer or solicitor in the course of his employment showing that a crime or fraud has been committed since the beginning of his employment, shall not be used to protect against disclosure.
Legal professional privilege in civil proceedings
Legal professional privilege is an exception to the discovery requirements of a litigant in civil proceedings. ‘General’ discovery (under O. 24, r. 1) and ‘particular’ discovery are provided for in the Singapore Rules of Court (under O. 24, r. 5). Where an order for a general discovery is made (which the Court may make on its own motion or at the request of a party), a list of documents shall be provided by the party against whom the order is made, which shall:
are in their possession, custody or power or have been in their possession
The party will rely on the
Could adversely affect or adversely affect their own case,
Impact the case of another party adversely, or support the case of another party
If a party makes a request for ‘particular’ discovery, the Court may make an order requiring any other party to submit an affidavit stating whether or not any document specified or described in the request is in their possession, custody or authority, or has been in their possession at any time (and if not, when possession, custody or power over the document was lost). An affidavit in which the applicant believes that the document (or class of document) requested in the application falls within one of the following descriptions must support an application for a particular discovery:
A document on which the party is or will rely, or on which the party is or will rely,
A document that could adversely affect its own case, adversely affect the case of another party, or support the case of another party.
Specific disclosure requests may also be made in respect of documents which may lead the applicant to board the investigation train, resulting in additional relevant information being obtained from them.
Where an order for general or specific discovery has been issued, the obligation to disclose the documents within the scope of the order is an ongoing one to be complied with throughout the life of the proceedings (O. 24, r. 8). The Singapore courts take discovery obligations seriously. In the discovery process, lawyers have an ethical duty to inform clients of their duties-to preserve and make available all documents required to be disclosed-and to take the necessary steps to discharge those duties. The Legal Profession (Professional Conduct) Rules require a lawyer to stop acting for a client if the client prevents the lawyer from fulfilling the duty to disclose documents, and if discovery obligations are not met, judgments may be set aside (or cases dismissed).
Legal professional privilege in criminal investigations
To the same extent and in the same manner as in civil proceedings, legal professional privilege applies to criminal proceedings. It remains unclear whether legal professional privilege in any way restricts the power of a criminal investigator to require the production of documents and / or to search and seize them. The general view is that a company’s legal professional privilege does not exempt it from complying with a summons or order issued by a court or police to produce documents for the purpose of carrying out criminal investigations. Protection against the production of such documents shall be granted only in the course of prosecution in criminal proceedings, provided that legal professional privilege may be established.
Legal professional privilege scope
A party may invoke legal professional privilege to avoid having to disclose documents recording confidential communications passed between a lawyer and a client in court proceedings for the purpose of providing or obtaining legal advice, irrespective of when those communications occur. Litigation privilege, on the other hand, is only involved when there is a reasonable litigation prospect; documents prepared prior to that point will not be covered by litigation privilege.
Protected documents include communications transmitting information between the lawyer and his client or, solely with regard to the privilege of litigation, to a third party, as well as the contents or conditions of any of the documents with which the lawyer has become acquainted during and for the purposes of his professional work. A pre-existing document not covered by privilege, however, does not become privileged merely because it was exchanged for the purpose of providing legal advice between the solicitor and the client, even if it was done in anticipation of litigation.
Does legal professional privilege protect interactions with in-house counsel?
Yes. In February 2012, new sections 128A and 131(2)(b) of the Evidence Act were amended to clarify that legal professional privilege includes communications with in-house counsel, provided that such communications have been made to them in the course of and for the purposes of their employment in that capacity. Prior to these amendments (introduced by the Evidence (Amendment) Act 2012), it was unclear whether communications with in-house counsel were covered by the definition of ‘legal professional adviser’ in section 131 of the Evidence Act. However, even prior to these amendments, the general view was that communications with in-house counsel would likely have been protected from disclosure under common law.
Does the legal professional privilege of correspondence involving qualified non-national lawyers apply?
According to Singapore law, in relation to the scope of protection, legal professional privilege does not distinguish between foreign lawyers and Singapore-qualified lawyers; it applies equally to communications issued or received by both categories of lawyers.
When the right is waived?
A party may, under common law and the Evidence Act, waive its right to invoke legal professional privilege only if it has consented to the production or disclosure of the document at issue. Expressly or implicitly, consent may be given. The courts will usually require clear evidence of consent in order to establish express consent, usually in the form of writing. Inadvertent production or disclosure of a privileged document would mean that once the document has been inspected, the quality of the privilege of the document would be lost. However, there are two situations, even after inspection, in which the court may, at its discretion, restrict the use of documents disclosed inadvertently that were previously privileged:
The first is where the privileged document was obtained through fraud by lawyers of the opposing party. The second is where the opposing party’s lawyers carried out inspection of the otherwise privileged document with full knowledge that the production or disclosure of the document was the result of an obvious mistake