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Concept Of Legal Professional Privilege In Israel

Definition

Israeli law is based on a common law legal framework that has been shaped by both its key religious communities and the country’s complex past. The legal structure of Israel, though primarily a common law system, incorporates elements of civil law, mostly derived from the Ottoman regime, German civil law and religious rules (including Jewish Halakha and Shari’a law).

The State of Israel has no written constitution, despite several references in the Israeli Declaration of Independence. In the state of Israel, the Knesset is responsible for enacting statutes.

The final court of appeal in the State of Israel is the Israeli Supreme Court (Beit Mishpat Elyon), reserved for hearing appeals from the District Court. Also, the Supreme Court sits as the Israel’s Supreme Court of Justice, hearing administrative proceedings.

The notion of legal professional privilege occurs in the state of Israel, unlike in many civil law jurisdictions in the country.

 

Legal professional privilege scope

Without the consent of the client, legal professional privilege prevents all correspondence between professional legal advisers and their clients from being released. 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.

If they can show the documents or knowledge, a lawyer ceases to be bound by the requirements of legal professional privilege protection:

  • At the time it was revealed to the attorney, it was in the public domain;

  • Entered the public domain through no fault of the lawyer after the time it was revealed to the lawyer; or

  • At the time it was revealed to the lawyer, demonstrated by contemporary documents, it was free of any duty of trust in the hands of the lawyer.

  • A lawyer may reveal such documents/information that would otherwise be covered by the right of the lawyer-client to the degree that such disclosure is needed by a valid order of a court or other government entity having jurisdiction, given that the lawyer provides the client with fair prior written notice of such disclosure and makes a reasonable effort to obtain a protective order to prevent such disclosure from being disclosed.

  • All matters or documents shared between a client and his counsel, relating to the legal service rendered by the lawyer to his client, are privileged under Israeli law (pursuant to both the Bar Association Act 1961 and the Evidence Ordinance 1971).

    Communications between a company’s in-house legal counsel and its officers, directors or personnel, relating to legal services provided by the in-house legal counsel to their client, the company, are also privileged.

    It is meaningless and does not affect the application of privilege that the in-house legal counsel is an employee of the organization.

    The contact is, however, privileged only if all the managers, directors or employees operate on the company’s behalf and the communication applies to matters within the professional lawyer-client relationship between the in-house legal counsel and the company. It is absolute in cases where privilege applies, and can only be waived by the client.