What is protected by legal professional privilege?
Legal advice privilege
Legal advice privilege under Section 126 of the Evidence Act has a wider scope of application than the usual common law litigation privilege. Primarily, legal advice privilege covers all legal advice given by an advocate and solicitor (as described below) to their client. Legal advice privilege also covers any documents which have been provided to the advocate and solicitor, brought to the attention of the advocate and solicitor, or which the advocate and solicitor had become familiar with in the course of their professional employment.
Litigation privilege under common law covers all documents that were created at a time when litigation was either pending or in contemplation. To determine if litigation privilege applies, the Malaysian courts will apply a two-stage test: (i) to determine whether litigation was pending or apprehended when the document or information was obtained, and (ii) to determine whether litigation was the dominant purpose for the preparation of the document in question.
Legal professional privilege in the context of criminal investigations
Legal professional privilege applies equally in the context of criminal investigations in Malaysia. See for example the Malaysian Anti-Corruption Commission Act 2009 (Anti-Corruption Commission Act 2009) which provides, under Section 46(2), that no order of the court may compel an advocate and solicitor to disclose any privileged information or communication in respect of any property which is liable to seizure, for the purpose of any pending proceedings.
Legal professional privilege in the context of investigations by the antitrust/competition authority
Section 22 of the Competition Act 2010 (the Competition Act) expressly provides that no person is required to produce or disclose any communication with a legal advisor which would be protected under Section 126 of the Evidence Act, unless privilege is waived by the privilege holder.
Legal professional privilege in merger control procedure
As of the date of writing, there are no merger control provisions applicable under the Competition Act. However, even if the Competition Act is amended to include merger control provisions, Section 22 of the Competition Act would likely extend to apply to legal professional privilege in a merger control situation, unless the amended provisions state otherwise.
Currently in Malaysia, there is a sector-specific merger control regime for aviation services under the Malaysian Aviation Commission Act 2015 (the Aviation Commission Act). While there are merger control provisions under the Aviation Commission Act, there are no specific provisions on legal professional privilege. This would mean that the usual laws of privilege under the Evidence Act and common law (as outlined above) apply.
Are communications with in-house counsel protected by legal professional privilege?
No. This position is untested in the Malaysian courts, and it remains to be seen whether the courts in Malaysia will specifically recognise communications with in-house counsel as being protected by legal professional privilege. Malaysia has no equivalent provision to Singapore, which has enacted Singapore’s Evidence Act (Cap. 97) section 128A to extend privilege to communications with in-house legal counsel.
Does legal professional privilege apply to the correspondence of non-national qualified lawyers?
This position is untested in the Malaysian courts. However, legal professional privilege is unlikely to apply to the correspondence of non-national qualified lawyers, pending further developments under Malaysian law.
This is because, under the Evidence Act, legal advice privilege extends to an “advocate”. Under the Interpretation Act 1948 and 1967, an “advocate” is defined to mean a person entitled to practice in Malaysia. As non-national qualified lawyers are not entitled to practice in Malaysia under the Legal Profession Act 1976, legal advice privilege would not extend to non-national qualified lawyers.
How is legal professional privilege waived?
Generally, legal professional privilege is absolute and may only be waived by the privilege holder, save for situations where protection is eroded by legislation. For example, under Section 46 of the Anti-Corruption Commission Act 2009 and Section 47 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFA), an application may be made to a Judge of the High Court to order disclosure by an advocate and a solicitor in relation to an investigation to offences under the acts.
However, such disclosure is strictly related to information available in respect of any transaction or dealing relating to property liable to seizure. There are further provisions under both sections that limit the extent of disclosure to exclude any privileged information or communication which came to the knowledge of the advocate and solicitor for the purpose of the proceedings pending before the court.
Legal professional privilege in the context of merger control
There are currently no merger control provisions under the Competition Act 2010. However, in the event merger control provisions are introduced, and when there is no express exclusion of privilege under said merger control provisions, legal professional privilege would apply.