Definition
In Bahrain, no federal structure exists. Instead, Shari’a (‘Islamic Religious Law’), tribal law, Egyptian codes and English common law are the basis of the legal system. The Shari’a courts mainly deal with Muslim personal legal matters (e.g. marriage and divorce), and all other matters are dealt with by the civil courts (derived from the Egyptian system). There is no system of precedent in the courts because of the existence of the civil law judicial system and decisions are also unpublished. In Arabic, trials are carried out predominantly on the basis of written submissions with little emphasis on live evidence (e.g. from witnesses).
The definitions of legal professional privilege and “without prejudice” communications do not exist per se in many civil law jurisdictions in the country, including Bahrain. Accordingly, the parties have the right to use any document that could support their position. However, lawyers in Bahrain will be bound by confidentiality duties; these duties incorporate principles similar to legal professional privilege in many instances.
Article 67 of the Law of Proof in Civil and Commercial Matters of Bahrain provides that ‘lawyers who gain knowledge of certain facts or information by carrying out their practice do not reveal those facts or information unless they have been warned of the facts or information for the sole purpose of committing a criminal offense or misdemeanor.’
Legal professional privilege scope
Without the customer’s consent, legal professional privilege prevents all correspondence between a professional legal advisor and their client from being revealed. The right is for the client’s and not the lawyer’s sole benefit. The aim of this legal principle is to preserve one’s access to the justice system by ensuring that individuals can report to their legal advisers all relevant information without worrying that this disclosure will have negative consequences or prejudice them in the future.
A lawyer ceases to be bound by the legal professional privilege standards if that documentation or knowledge can be demonstrated by the lawyer:
- At the time it was revealed to the prosecutor, it was in the public domain;
- Subsequent to the time it was revealed to the lawyer by the lawyer without fault, it entered the public domain; or
- At the time it was revealed to the lawyer, it was in the hands of the lawyer free of any duty of trust, evidenced by documents in existence at the time of disclosure.
Notwithstanding the lawyer-client privilege, to the degree that such disclosure is needed by a valid order of a court or other governmental body having jurisdiction, a lawyer may disclose such documents/information provided that the lawyer provides the client with fair prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or restricting such disclosure. The Parties should also seek an assurance that, in any future proceedings, any information found in such communications would not be used as evidence.
The same privilege rights do not tend to extend to in-house legal counsel representing the company’s officers, directors or staff, since they are not independent of the client. It is, however, possible to enter into a confidentiality arrangement between the employer and the employed in-house legal counsel to protect this information.