Legal professional privilege protects all communications between professional legal advisers and their clients 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 protection if they 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.
A lawyer may disclose certain documents / information that would otherwise be protected by lawyer-client privilege 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.
Under Israeli law (pursuant to both the Bar Association Law 1961 and the Evidence Ordinance [New Version] 1971), all matters or documents exchanged between a client and their lawyer, pertaining to the professional service granted by the lawyer to their client, are privileged. Accordingly, communications between in-house legal counsel of a company and its officers, directors or employees, pertaining to legal services rendered by the in-house legal counsel to their client – the company – are privileged.
The fact that the in-house legal counsel is an employee of the company is irrelevant and does not influence the application of privilege.
However, the communication is privileged only if both the officers, directors or employees are acting on behalf of the company and the communication relates to matters falling within the professional lawyer-client relationship between the in-house legal counsel and the company. In instances where privilege applies, it is absolute, and can only be waived by the client.
Legal professional privilege in the context of merger control
Legal professional privilege has not been clearly defined within the context of merger control in Israel.