What is protected by legal professional privilege?
While neither the Evidence Ordinance nor the Supreme Court Rules explicitly reference the term “legal professional privilege,” legal professional privilege operates in Sri Lanka in a similar manner to other common-law jurisdictions.
Under the Evidence Ordinance, no attorney is permitted, unless with a client’s express consent, to disclose:
- Any communications made to them in the course of, and for the purpose of, their employment
- The contents or conditions of any document with which they have become acquainted in the course of, and for the purpose for, their professional employment; or
- Any advice given by them to their client in the course of, and for the purpose of, their employment.
Such limitations also apply to interpreters and the clerks or servants of the Attorney-at-Law and notaries.
The Evidence Ordinance also stipulates that no one shall be compelled to disclose to the court any confidential communication which has taken place between them and their legal professional advisor, unless they offer themself as a witness. In which case, they may be compelled to disclose such communications to the court only if it is necessary to explain any evidence which they have given.
Supreme Court Rules
The Supreme Court Rules stipulate that an attorney must keep in strict confidence “all information, whether oral or documentary, acquired by him from, or on behalf of, his client in any matter in respect of and concerning the business of his client.” While this is framed as a “duty of confidentiality,” it is not very different from the concept of legal professional privilege that arises in other common law jurisdictions.
According to Rule 2 of the Supreme Court Rules, the duty of confidentiality (i.e. legal professional privilege) will extend to all attorneys admitted and enrolled by the Supreme Court of the Democratic Socialist Republic of Sri Lanka. In addition, under Section 2 of the Evidence Ordinance, this concept applies to all judicial proceedings, both civil and criminal, with the exception of proceedings before a court martial or arbitrator.
The duty of the attorney to refrain from disclosing such confidential information survives not only during the existence of their professional relationship with their client, but also after the attorney ceases to act for the client and after the death of the client.
The duty also extends to partners, associates and employees of the attorney. If such an individual becomes aware of such confidential information, the attorney would be obliged to take all reasonable steps to prevent the disclosure of the confidential information. This duty also continues beyond the termination of the attorney’s relationship with such people.
An attorney who possesses privileged information concerning their client is barred from undertaking any other professional matter, where such privileged information could be used against the client.
Are communications with in-house counsel protected by legal professional privilege?
Yes, communications with in-house counsel are protected by legal professional privilege. The Supreme Court Rules are applicable to all attorneys admitted and enrolled by the Supreme Court of Sri Lanka. As such, there is no distinction between in-house counsel and any other attorney, provided they are admitted and enrolled by the Supreme Court of Sri Lanka.
As a result, all communications with attorneys, including in-house counsel, will be protected by legal professional privilege if the communications arise in the course of an attorney-client relationship.
Does legal professional privilege apply to the correspondence of non-national qualified lawyers?
The scope of the Supreme Court Rules is limited to attorneys who have been admitted and enrolled by the Supreme Court of Sri Lanka. As such, the legal professional privilege afforded will be applied to correspondence between a client and their attorney when the attorney falls within the scope of the Supreme Court Rules, i.e. they are admitted and enrolled by the Supreme Court of Sri Lanka.
Therefore, legal professional privilege will not extend to correspondence with non-national qualified lawyers.
How is legal professional privilege waived?
For legal professional privilege to be waived, the express consent of the client should be obtained. The Supreme Court Rules permit disclosure if it is expressly or impliedly authorised by an attorney’s client in writing or in the event of the death of their client, by the legal representative of the client. Even then, the attorney must be careful to disclose only information deemed necessary in the circumstances.
However, both the Supreme Court Rules and the Evidence Ordinance provide that the client’s consent is not required for waiver of legal professional privilege if the confidential communications are made in furtherance of an illegal purpose, or where disclosure is necessary to prevent the commission of a crime or fraud.
In addition, the Supreme Court Rules allow attorneys to disclose confidential information in order to defend themselves, their associates or their employees against any allegation of misconduct or malpractice made by a client, or to prevent the commission of a crime, fraud or illegal act.
Furthermore, in the case of a joint retainer, or where the client has a joint interest with others, disclosure of the confidential information is allowed to the members of the joint retainer or to those having a joint interest with the client.
The Prevention of Money Laundering Act No. 5 of 2006 and Financial Reporting Act No. 6 of 2006 of Sri Lanka also make allowances for the Financial Intelligence Unit of Sri Lanka to require an attorney to disclose privileged communications, if such communications were made for the commission or for furthering the commission of any illegal or unlawful activity.
According to the Evidence Ordinance, privilege is not considered waived purely on the grounds of a party giving evidence, voluntarily or otherwise. However, if a party agrees to appear as a witness, the court can compel them to disclose confidential communications if the court deems it necessary to explain any evidence given.
Legal professional privilege in the context of merger control
There are no specific legal professional privilege requirements in the context of merger control under Sri Lankan law. However, the general duty of nondisclosure of privileged information will be applicable when communications arise in the course of an attorney-client relationship.