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Article by Guest Contributor

Is the information you give to your attorney privileged or is it confidential?

Parting of information

When you hire an attorney to act for you, you expose yourself in sharing your personal information with him/her. To be able to do this without fear, you need to understand when the information you give to your attorney is privileged or when it is confidential.  Privileged information cannot be used against you, confidential information can.

What is confidentiality

Any attorney has a duty to keep the communication with his/her clients confidential.  This is because a fiduciary relationship exists between an attorney and his/her client.  The attorney may not disclose the information a client has given to him/her. Confidentiality is a wide term and includes all information, no matter what it is (written or oral or visual).

Why is it important

It is important that all clients everywhere in the country can know that the information parted to the attorney will be kept confidential.  If there wasn’t this clear-cut strict rule in place, it would be hard to trust an attorney with your private information.  The duty on the attorney to keep clients’ information confidential is very high and if an attorney breaches this confidentiality by exposing a client’s information to somebody else, the attorney can be held liable for damages.  

What is privileged information?

No attorney may disclose any privileged information of a client to anybody, unless ordered so by a court of law.  Privileged information means that certain communications between an attorney and his/her client may not be used in evidence.  

When does privilege apply to information?

In the court case of Thint (Pty) Ltd v National Director of Pubic Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC) the Honourable Court said that there are four legal requirements for privilege to apply:

1. The attorney must have acted in a professional capacity, for example the attorney must have been paid a fee.

2. The client must have consulted with the attorney in confidence.  There must obviously have been confidentiality before there can be privilege. A communication (written or oral) not intended to be confidential, cannot be privileged. It is difficult to determine when a communication between an attorney would not be confidential which basically means, in my opinion, that all communications between an attorney would be confidential and therefore privileged.

3. The client must have sent the communication (oral or written) for the purposes of obtaining legal advice from the attorney. There is legal advice and there is litigation. Legal advice is obtained from the attorney and all communications for these purposes are privileged.  Litigation privilege refers to all communications between the attorney and his client or between the client’s attorney and a third party for the purposes of any actual or contemplated litigation.

4. The advice must have been legal advice and not advice to help somebody to commit a crime of any kind, even if the attorney is completely unaware of the crime. These types of communications are not privileged information and therefore not protected.

Who owns the privilege?

The client owns the privilege. The attorney can only be forced to give the information (except under point 4 above) if a court orders him/her to do so or if the client gives the attorney the permission to give the information to whoever asks for it. It would, most of the time, not be in the client’s interest to give the permission that the privilege be lifted. The privilege does not extend to persons who do not have a law degree, for example a chartered accountant who gives tax advice.