Definition
Legal professional privilege does not serve only as a rule of evidence in Thailand, but is a substantive right. It implies that legal
In a wide variety of cases, professional privilege may shield a lawyer from having to reveal the sensitive details or records of clients.
A lawyer has the responsibility, in compliance with Clause 11 of the Legislation on Lawyers Conduct B.E., not to reveal any details received from the client during the exercise of his duties as a lawyer. 2529, which states that, unless they have received prior permission from the client or an order from the court to reveal such information, a lawyer is expected to keep any information obtained from the client confidential.
Whether or not a Thai lawyer appears in court does not affect their obligation to keep the details of their client private. In our opinion, the presumption of confidentiality does not appear to be enforced by Clause 11 and, as such, it remains uncertain if communications already in the public domain have ceased to be covered by legal professional privilege or not. A contact between the lawyer and the client, whether or not private, would attract legal professional privilege based on a strict reading of Clause 11.
The understanding is consistent with the fact that there are no explicit laws or regulations relating to the difference between information obtained by an attorney for the purposes of court proceedings and information received for any other purpose. For the purposes of court cases, it is not appropriate for a lawyer to collect information from his client; all information relating to the case of a client is often considered to be confidential, including all information from sources other than the client.
Statutes under Section 92 of the Thai Civil Procedure Code and Section 231 of the Thai Criminal Procedure Code, which divide legal professional privilege into two groups, enforce legal professional privilege:
In civil litigation, legal professional privilege, and
In criminal litigation, legal professional right
Legitimate professional privilege in the sense of civil litigation
Section 92 of the Thai Code of Civil Procedure can be summarized as follows, where any party or person is legally required to testify or produce any kind of evidence before a Thai court and may reveal such testimony or evidence:
Any official document or fact relating to the affairs of the State which, by its design, is to be kept temporarily or permanently secret and which, by virtue of its official appointment or any other official or semi-official power, is known to that party or individual
Any confidential document or fact entrusted or imparted to them by a party in its capacity as a lawyer or as an attorney
Any invention, design or other work which is shielded from publicity by statute, the party or individual concerned shall be entitled to refuse to testify or produce such evidence unless they have obtained permission from the competent official or person concerned.
Legitimate professional right in the sense of criminal litigation
Section 231 of the Thai Code of Criminal Procedure may be summarized as follows if any group or person is legally required to offer or deliver any kind of commodity before a Thai court:
Document or fact that constitutes official confidential information
Confidential document or fact obtained or made known to them by virtue of their professional or duty, or by virtue of their professional or duty,
The procedure, design or other works shielded from publicity by law are entitled to refuse to provide or produce such evidence unless they have received permission from the authority or the individual concerned with such confidential information.
In both parts, however, the court has the right to summon the authority or individuals concerned to appear before the court and to clarify why the contact is subject to legal professional privilege. In order to determine whether the non-disclosure is well-grounded or not, the court can exercise certain authority. If the court is convinced that the refusal is not well-founded, the court has the power to give such testimony or produce such evidence to or from that party or individual. This meant that the court could circumvent the legal professional privilege defense afforded.
Legal professional privilege in inquiries of a competition regulator
In the case of inquiries or merger regulation by a competition regulator, there is no legitimate professional right. Under Section 63 of the Competition Act on Thai Trade B.E. 2560, the competence of the authority is as follows:
– Issuing oral submissions and providing accurate information or providing explanations in writing or submitting accounts, registrations, documentation or other evidence for review or consideration by any person.
Introduction to places and places of operation, manufacture, selling, purchase, storage of goods, provision of services by a business operator or any individual or any other place where it is fair to conclude that there is a violation of provision under this Act for the purpose of performing an investigation under this Act to search and seize or collect records, accounts, registration or other evidence for the benefit of
To obtain or bring products for inspection or study in the quantity requested as a sample without paying for the goods. This is carried out in compliance with the requirements laid down in the notification by the Commission.
However, according to Section 76 of Thailand’s Trade Competition Act, B.E. 2560, facts submitted to the competition authority relating to the company or service of a business operator that are factual details usually reserved and not revealed by a business operator or known as a consequence of the performance of duties under this Act shall be kept confidential and not disclosed unless the disclosure is made for the performance of official duties or for the purpose of prosecution or investigation. Any person who violates this section shall be liable for a period of imprisonment not exceeding one year or a fine not exceeding THB 100,000, or both.
Legal professional privilege scope
Under Clause 11 of the Lawyers’ Conduct Legislation B.E. 2529, unless they have received prior permission from the client or an order from the court to reveal such details, a lawyer is allowed to keep information obtained from the client confidential. Violation of the regulation may be punished by:
Suspension of determination of fines
Prohibition of practice as a lawyer for a term of up to three years or withdrawal of the name from the registry of lawyers in compliance with Section 52 of the B.E. Lawyer Act. 2528-528 (1985)
Section 4 of the Act on Lawyers B.E. 2528 (‘Lawyers Act’) states that a lawyer refers to a person who is registered as a lawyer and has obtained a license from the Lawyers Council of Thailand. Legal practitioners can be grouped into two classes. First, for the purposes of Section 4 of the Lawyers Act, those who are of Thai nationality and have obtained a lawyer’s license granted by the Lawyers Council of Thailand (‘Licensed Lawyer’) fulfill the definition of ‘lawyer.’ Secondly, in order to provide legal advice in Thailand (i.e. working as a solicitor) (‘Non-Licensed Lawyer’), one does not have to be a registered lawyer.
Therefore, it appears that Clause 11 of the Lawyers Conduct Legislation does not extend to non-licensed lawyers, such as legal advisors or legal consultants. However, under Section 420 of the Thai Civil and Commercial Code and Section 323 of the Thai Penal Code, Non-Licensed Lawyers may be subject to possible tort and/or criminal liability for disclosure of confidential clients.
Section 420 of the Thai Civil and Commercial Code provides that ‘A individual who unlawfully injures the life, body, health, liberty, property or any right of another person, wilfully or negligently, is said to commit a wrongful act and is obliged to render restitution for it.’ Section 323 of the Thai Penal Code provides that ‘Whoever knows or acquires any other person’s confidential information as an individual who receives training in the profession referred to in the first paragraph discloses confidential information from another person who has come to their knowledge or who has obtained confidential information from the training in a manner that is likely to cause harm to another person.
Therefore, while the legal professional right does not extend to the Non-Licensed Lawyer, the Non-Licensed Lawyer is still obligated to retain the clients’ confidential details. Under Section 420 and Section 323 above, failure to do so can attract punishment.