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October 25, 2023Protection of Privileged Communication: What Corporations Need to Know
Recent headlines on the raid conducted by the Malaysian Anti-Corruption Commission have triggered concerns from corporations in Malaysia regarding the confidentiality of their internal information, especially in relation to privileged communication with external counsels.
Essentially, a raid is conducted by a regulatory authority with the main objective of obtaining all relevant information and documents which will assist in its investigation towards the entity being raided, or against any third party connected and/or having any relationship with that entity. Therefore, it is pertinent for corporations to understand the scope and limitations of such a raid, and safeguard their rights and interests when complying with any instructions or orders produced by the regulatory authority.
Governing Law
First, we shall examine the legal position in Malaysia that governs the protection of privileged communication between a lawyer and their client. The protection of privileged communication, which is derived from common law, was embedded into the Malaysian legal system by virtue of Section 126 and Section 129 of the Evidence Act 1950:
Section 126 – Legal Advice Privilege
(1) No advocate shall at any 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 advocate by or on behalf of his client, or to state the contents or 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 advice given by him to his client in the course and for the purpose of such employment:…”
Section 126 accords protection to any legal advice obtained by a client from a lawyer, regardless of whether such advice/communication was made during the professional engagement or after the relationship has ceased. There is no requirement for an actual/potential legal proceeding to exist for the legal advice privilege to apply.