Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.
A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:
- Was in the public domain at the time it was disclosed to the lawyer;
- Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
- Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.
Notwithstanding lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law or regulation.
In the UAE, there is no process of discovery and / or inspection of documents as part of the litigation process. Instead, each party will simply file the documents that it seeks to rely on and there is no obligation on a party (subject to a court order) to file a document which is damaging to its case.
As is the position with most civil law jurisdictions in the Middle East, there are no express privilege rules in the UAE and parties are able to, in theory, admit into evidence any document which may support their position. Instead, the concept of legal professional privilege in the UAE is limited only to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all communications made between a lawyer and their client for the purposes of litigation. However, Article 42 of UAE Law No. 23 of 1991 states that "an attorney is to keep confidential the communications made in furtherance of their professional representation of a client, unless such disclosure is required to prevent the perpetration of a crime." The Code of Ethics further states "such information is to be kept confidential regardless of whether the representation is advisory/non-contentious or contentious in nature."
Indeed, lawyers must not disclose confidential information provided to them by their client without the client's express permission pursuant to the Federal Law on the Regulation of the Legal Profession.
It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent of the client. However, to protect information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.
The Dubai International Financial Centre ("DIFC") is an 'opt-in' jurisdiction subject to the DIFC Courts. "Privilege" is defined in the Rules of the DIFC Court 2018 (28.28(2)) as "the right of a party to refuse to disclose a document or to produce a document or to refuse to answer questions on the ground of some special interest recognised by law".
However, the DIFC Courts have not produced any practice directions in relation to the application of this rule nor have the courts been required specifically to rule on the issue of legal professional privilege in the DIFC. While it may be expected that the concept of legal professional privilege would be more widely applicable within the DIFC (largely due to the common law basis of its jurisdiction), parties cannot rely on this until the DIFC Courts issue guidance on the application of legal professional privilege in the DIFC.
Legal professional privilege in the context of merger control
Legal professional privilege has not been clearly defined within the context of merger control in the UAE.