The relationship between a lawyer and his client is fiduciary in nature which is laced with a high level of confidentiality. The lawyer is obliged by law not to divulge confidential communication from his client. It is one of the oldest recognized privileges for confidential communications. By assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their lawyers, who are then better able to provide candid advice and effective representation. The privilege protect both the individuals and the institution.
The term attorney-client privilege is an American coinage which is synonymous to legal professional privilege in most common law jurisdiction including Nigeria.
The principle originated as protection for individuals when accessing the knowledge and legal resources available to a lawyer and was said to stem from the “oath and honour” of the lawyer, a sort of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients would be discouraged from making full disclosure to their counsel. Under the common law the principle dates back at to 1577 in the case of BERD v LOVELACE (1577) Cary 62 Subsequently, in 1833 Lord Brougham in GREEBNOUGH v GASKET laid down the policy behind the principle to wit:
“ The foundation of this rule is not difficult to discover. …,…… it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skillful person, or would only dare tell his counsellor half his case”
This sacred doctrine is not without limitations. In England today, the principle is subject to the Rules of Standard disclosure under the provisions of the CPR specifically Rules 31 (not discounting other limitation) which makes for disclosure of a document upon application of a party for inspection if such inspection would be proportionate, giving the nature of a case except where the party making disclosure has the right to withhold inspection. The Proceeds of Crime Act 2002 (PoCA) requires Solicitors who suspect their clients of money laundering to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 14 years in jail. However, the English Court of Appeal in BOWMAN v FELS (2005) gave attorney-client privilege precedence over the PoCA, stating that it does not override legal professional privilege.
In the US, the crime-fraud exception is one famous limitation to this principle. This exception applies when communications between an attorney and client are themselves used to further a crime, tort, or fraud. In CLARK v UNITED STATES 289 U.S. 1, 15 (1933), the US Supreme Court stated thus: “A client who consults an attorney for advice that will serve him in the commission of fraud will have no help from the law”. Disclosure that are not confidential i.e are within public knowledge cannot be seen as privilege. A Lawyer may disclose confidential information relating to his retainer where they are reasonably seeking to collect payment for services rendered. This is justified on policy grounds. Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives the rights to confidentiality. In certain situations failure to perfect a lawyers brief is sufficient ground to break privilege.
In Nigeria, Rules 19(1) of the Rules of Professional Conduct 2007 which is a subsidiary legislature to the Legal Practitioners Act 2004, Section 192 of the Evidence Act, 2011 Section 37 and 45(1) of the Constitution provides a context for this principle. Rule 19 protects as privileged all oral or written communication made by the client to his lawyer in a normal course of his professional engagement. However sub-rules (3) provides for the limitations of this privilege which allows the lawyer to reveal confidential communication with consent of the client, or when compelled by a court order or any law, or where such revelation of confidential information will prevent the commission of a crime and where it is necessary to establish or collect his fees or to defend himself or employees or associates against accusation of wrongful conduct. Section 192 of the Evidence Act, provides that “No legal practitioner shall at the time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advise given by him to his client in the course and for the purpose of such employment” Subsection 1(a) (b) provides for the exceptional circumstance which allows a lawyer to reveal privileged information which is impair materia with the exception provided for by the RPC. This principle has been fully inculcated in our jurisprudence. Recently, the Federal High Court siting in Abuja Coram Kolawale .J. upheld the attorney-client privilege doctrine above the provisions of the Money laundering Act, 2011 insofar as it they purport to apply to legal practitioners in REGISTERED TRUSTEES OF NBA v ATTORNEY GENERAL OF THE FEDERATION & CBN. (FHC/ABJ/CS/173/2013) delivered on the 17th day of December 2014. The decision nullified the provision of section 5 of the MLA which connotes that lawyers should disclose all transactions above $5,000 or its equivalent. The Policy behind this decision is that the Legal profession in Nigeria today with its enabling framework has been sufficiently regulated by the general council of the Bar which is created pursuant to Section 1 of the Legal Practitioners Act, the Chief Justice of Nigeria, the appeal committee of the Body of Benchers, the LPDC (not discounting the exception created by the both the RPC and the Evidence Act). It was the thinking of the court which the writer agrees with that the MLA, the CBN directives as contained in the Special Control Unit Against Money Laundering (SCUML) body which the court described as a non-juristic person vide a court of Appeal decision in AGBOOLA v SAIDU (1991) cannot override the provisions of the Constitution, the Legal Practitioners Act and the Evidence Act as they relate to the Sanctity of the “ Confidentiality of Communication” between a legal practitioner and his client. One very commendable line of argument canvassed by the NBA in this case is that the provisions of Section 192 of the Evidence Act is a specific provision that protects attorney-client communication, whilst the provision of Section 5 of the MLA is general in nature because it was made to cover the category of persons or interests it refers to as “ designated Non- Financial Institution” (DNFIs) and listed in Section 25 of the MLA as the legal practice is distinct from casinos, car dealers, jewelers, Bureau de change etc. It is trite law that specific provisions relating to a particular issue override that which is general on the issue. NDIC v SHERRIFF (2004) 1 NWLR (pt 855).
Attorney–client privilege is not just for litigators. Clients and their lawyers would like to cloak their transactional deals in confidentiality and such privilege can be a ready made vehicle for achieving that. This is simply using the privilege as a smoke-screen. The reality is that simply having a lawyer involved in a transaction does not automatically confer the right to suppress all communications about the deal on grounds of privilege. The question is when a lawyer negotiates a business deal for a client, is there actually privilege available to shield the communications between himself and his client? If the answer is in the affirmative the follow up question will be whether that transactional lawyer will later be deemed by a court to be functioning solely or primarily as business negotiator rather than legal advisor?. In Nigeria, where there is this fusion of Solicitors and Barristers, it is hardly obtainable for an average lawyer not to combine both the advocacy areas of practice and soliciting. This includes most members of the inner bar. Conceivably, there is a fast emerging practice of specialty amongst Nigerian lawyers lately. However, the simply answer to these question in my opinion is that as a general rule, where a lawyer serves solely as a negotiator (which falls outside the cloak of privilege) when the services provided by the lawyer are sufficiently divorced from legal issues and could have been provided by non lawyer, the privilege should not apply. This distinction was advanced by the AGF in the NBA v AGF decision (supra) that Section 5 of the MLA applies only to lawyers who are involved in transactions mentioned in Section 25 of the Act who are required to obtain other qualifications, certifications and proficiency to be able to deal in the said transactions. Therefore, lawyers in specialized practice like insolvency, Capital market or insurance that will require some form of accreditation or proficiency from relevant regulators will not be shielded by attorney-client privilege in their dealings. The determinant factor in other clime to ascertain the applicability of privilege is the use of doctrine of “ dominant purpose”. Under this test if the dominant purpose of the communication is to provide non-legal service then the privilege will not apply.