With respect to the doctrine of partial waiver of privilege, Justice Hartmann considered the grounds of solicitor-client privilege invoked in the English and New Zealand authorities[1] – that a person must be able to consult confidentially with his or her lawyer for the administration of justice. This principle is enshrined in Article 35 of the Basic Law of Hong Kong, which provides that residents have the right to confidential legal advice. In particular, Justice Hartmann was of the view that he was not bound by the Rockefeller finding,[2] in which Justice Keith JA stated that the doctrine of “partial waiver” was “conceptually unfounded.” [3] The Court of Appeal confirmed that Hong Kong law contains the concept of partial waiver of privileges. Legal advice privilege extends to all communications prepared for the primary purpose of advising a client and during the lawyer-client continuum of communication. The privilege extends to internal communication between in-house lawyers, provided that the internal communication is primarily used to advise their client business (i.e., their employer) and between in-house counsel acting in their capacity as lawyers, as opposed to other functions (for example, administrative or executive counsel). Jones Day publications should not be construed as legal advice on any particular fact or circumstance. The Content is provided for informational purposes only and may not be quoted or referred to in any other publication or process without the prior written consent of the Company, which is granted or withheld at our discretion. To request permission to reprint one of our publications, please use our “Contact Us” form, which can be found on our website under www.jonesday.com. The sending of this publication is not intended to establish an attorney-client relationship and receipt of this publication does not constitute an attorney-client relationship.
The views expressed herein are those of the authors and do not necessarily reflect those of the firm. Hartmann J. held that privilege is the same in civil and criminal proceedings and cannot be lost without proof that the holder of the privilege has intentionally waived it. While such evidence may be inferred depending on the circumstances of the case, it should not be made lightly, as solicitor-client privilege is a constitutionally guaranteed right. The fact that the person receiving legal advice chose to disregard it and to act independently and dishonestly would not affect the privileged status of the opinion. [4] Solicitor-client privilege applies to both in-house counsel and qualified counsel, provided that the in-house lawyer is a professionally qualified lawyer and acts in that capacity. On the facts of the case, the court found that Citic had only partially waived privilege for the purposes of SFC`s investigation and that the waiver was broad enough to allow SFC to use the legal documents to seek legal advice from the Department of Justice. The Court further noted that if Citic`s legal counsel had specifically indicated the basis on which the documents had been provided to the SFC, the extent of Citic`s waiver would not have been disputed.
Keung v Commissioner of Police [2022] HKCFI 374 discusses (among other things) the circumstances in which non-privileged documents compiled or selected for legal advice may be protected by solicitor-client privilege. The circumstances of the disclosure are not protected by solicitor-client privilege. Solicitor-client privilege applies only to communications, but not to matters or facts that are beyond the control of the communication. The ENRC case confirmed that legal advice privilege is limited to communications between a lawyer and persons responsible for obtaining and receiving advice on behalf of the client firm, as set out in Three Rivers No. 5 designed. The Court recognised that this narrow approach (definition of specific persons within the organisation) disadvantages large companies and means that English law is not consistent with international common law on this issue. Solicitor-client privilege exists in Hong Kong common law and is enshrined in Article 35 of the Basic Law, which states that “Hong Kong residents shall have the right to confidential legal advice… ». The Hong Kong Court of Appeal in Super Worth Int`l Ltd & Others v Commissioner of the ICAC & Another [2016] 1 HKLRD 281 followed the decision of the UK Supreme Court in R (on the application of Prudential plc and another) v. Special Commissioner of Income Tax and another [2013] UKSC 1 and concluded that solicitor-client privilege does not extend to advice given by other professionals. than lawyers, even if it is legal advice that the skilled person was qualified to give. Foreign lawyers practising in Hong Kong are recognized as lawyers for the purposes of solicitor-client privilege, but the protection afforded by this privilege applies only to proceedings in Hong Kong.
1. “Legal privilege” refers to communication between a lawyer and his or her client for the purpose of legal advice or questioning. In this context, “legal advice” can refer to guidelines on the implementation of certain measures or the presentation of a case and is not limited to a legal opinion on what the law is. Unlike litigation privilege, this type of privilege does not apply to third parties. In this case, the applicant invoked solicitor-client privilege with respect to a number of digital and printed documents, including a “workbook”, the contents of which, in the applicant`s view, had been compiled for the primary purpose of obtaining legal advice and/or using it in anticipated litigation (the “Disputed Material”). The plaintiff had been a senior officer of an affiliate, and the court admitted that he had “a common interest with . the group during the process of obtaining legal advice, so that it has the necessary authority to assert BVG claims in the disputed documents in its own capacity” (para. 34).
If the answer is yes in both cases, communication is probably preferred. Otherwise, they are unlikely to be privileged. As a commercial litigation lawyer with over 35 years of experience, David has extensive experience defending professional liability, financial insurance and other specialty risk claims, as well as advising insurers on such claims. On the basis of these facts, the English court concluded that the employee was not the client and that, therefore, the communications in question were not protected by solicitor-client privilege. This narrow position was confirmed in Glaxo Wellcome UK, which is a clear example of how the English court`s interpretation affects practice. The in-house lawyer in question was employed by a company of the Sandoz Group, the fourth defendant in the action (the “Defendant”). The plaintiffs challenged the defendant`s claim for legal privilege in respect of two documents: The Hong Kong Supreme Court of Appeal in Akai Holdings Ltd (in liquidation) v. Ernst & Young (A Hong Kong Firm) (24/02/2009, FACV28/2008) confirmed that such protection relates to the issue of overriding purpose and will apply where the documents were created to obtain legal advice in the context of actively contemplated and prospective litigation at that time. Time. In the absence of actual or pending litigation, the Hong Kong Magistrates` Court in Citic Pacific Limited v. Minister of Justice and Anor (19/12/2011, HCMP767/2010) considered that litigation should be a real probability rather than a mere possibility.
The SFC requested documents and records from Citic for the purposes of the investigation, and Citic provided, among other things, six documents that would have been subject to solicitor-client privilege (“legal documents”). The SFC sought legal advice and subsequently handed over the legal documents to the Hong Kong Ministry of Justice. The police, who conducted a criminal investigation against Citic in March 2009, requested the legal documents for their own investigation. Under Paragraph 39A(2) of the Rechtspraktikerverordnung (Chapter 159), legal professional privilege exists in the same way as legal professional privilege between a lawyer and his client. It is therefore permissible to invoke solicitor-client privilege against legal advice given to foreign lawyers. For both categories of privileges, the communication must be confidential and with the intention of remaining so. Solicitor-client privilege extends to the protection of communications between in-house counsel and corporate clients (i.e., their employers). However, the claim of privilege is subject to special consideration. Communication with registered in-house counsel must be made with or by in-house counsel registered in their capacity as lawyers, as opposed to another capacity (e.g., executive in nature).
In addition, communications must address legal issues that are different from administrative or commercial matters. There is no single criterion for classifying all situations as falling on one side of the line or the other. However, there are two useful benchmarks: solicitor-client communication that meets the relevant requirements, whether it is the original or a copy, is protected by privileges. This protection applies whether the originals and/or copies are in the possession of the lawyer or client. However, protection may be lost if communications are sent to an external third party, including for review and/or comment, beyond the scope of litigation and legal advice privileges.