EXCEPTIONS TO ADVOCATE-CLIENT PRIVILEGE
The duty of an advocate to his client not to disclose confidential/privileged information is not
absolute. The duty has both constitutional and statutory qualifications. An advocate can
therefore disclose or be compelled to disclose confidential/privileged information in certain
instances in order to fulfil the interest of justice and fairness.
In Kenya, such exceptional circumstances are governed by statute and common law. Statutory
exceptions are set out in the Constitution of Kenya, 2010 and the Evidence Act Cap 80 Laws
of Kenya. Discussions of those instances are as follows: a) The Constitution of Kenya, 2010 exception: Public Interest considerations as to
Access of Information
The Constitution of Kenya 2010 at Article 35 recognizes right to access to information by
citizens of Kenya. A citizen therefore has a right to information held by another person if he/she
requires that information for the purpose of protecting a right or a fundamental freedom.
Interpreting this provision of law, courts in Kenya have held that as long as one is a citizen and
a natural person, then they can get orders from court to compel one provide any information
that they hold.
In the case of Nairobi Law Monthly Ltd v KenGen & 2 others the court held that a citizen
claiming a right to access information must not only show that the information is held by the
person from whom it is claimed; the citizen must go further and show that the information
sought is required for the exercise or protection of another right. The citizen after satisfying
the above test, he/she would be entitled to the information irrespective of whom it is held. The
citizen can file a petition alleging violation of right to access information even by the private
persons.
In the case of Nelson O Kadison v Advocates Displinary Commission & another Majanja J
said that he would order the production of privileged information in appropriate cases if the
information relates and is required for the purposes of protection of rights.
The Evidence Act, Cap 80
Legal privilege as an evidentiary rule relies on the Evidence Act as its substantive law. S. 134
(2) of the Evidence Act outlines the exceptions as to the legal privilege. It provides that
disclosures as to privileged information happen in the following two circumstances:
a) Any communication made in furtherance or in facilitating of an illegal act; and,
b) Any fact observed by an advocate in course of his employment as such showing any
crime or fraud has been committed since the commencement of his employment,
whether the attention of such an advocate was or was not directed to the fact by his
client or an agent of the client.
They are discussed as follows:
Future crime or fraud
Where a fraud is alleged to have been perpetrated by an advocate in the course of his
employment as such, an advocate may be compelled to disclose the information relayed to a
client. This is in contemplation of section 134(2) of The Evidence Act. For this exception to
apply, it must be shown that the client had the intentions to commit illegal purpose or deceived
as to his purpose and that he went ahead and shared with the advocate. This means that the
client needs to be aware that the intended conduct was unlawful.
However, ignorance of law is no defence if he argues that he was not aware of the illegality of
his conduct. In these instances, an advocate providing advise may facilitate commission of an
illegal act and thus there is not entitlement to advocate-client privilege. An illustration of this
is the case of Descôteaux v. Mierzwinski1, where it was held that that confidential
communications, whether they relate to financial means or to the legal problem itself, lose that
character if and to the extent that they were made for the purpose of obtaining legal advice to
facilitate committing a crime or if the communications were in themselves criminal. In this
case it was alleged that Mr. Ledoux had falsely stated his income on an application for legal
aid contrary to s. 324 of the Criminal Code. In furtherance of a criminal investigation, a justice
of the peace issued a search warrant, and police officers attended at a legal aid bureau in
Montreal to execute the warrant and to seize the legal aid application form that contained
information supplied by Mr. Ledoux about his financial means. The application form also
contained other information, including professional notes from the lawyer assigned to the case.
An application for certiorari was brought to assert that the seized material, which was placed
in a sealed envelope without examination, was protected by lawyer-and-client privilege.
Lamer, J. upheld the dismissal of the application by the lower courts on the grounds that
Ledoux’s false communications were not privileged and appropriate safeguards were in place
to protect the genuinely privileged portions of the legal aid application from disclosure.
However, it might happen that the advocate advises on legality of a conduct which may turn
out to be illegal. In this instance, such communication might be deemed privilege as was held
in Canadian case of R. v Campbell.2
A party who suffers from the fraud may apply to court to compel an advocate to release the
information. Privilege will not protect such information. In the case of Barclays Bank Plc v
Eustine,3 an advocate assisted parties to make a disposition that was very prejudicial to the
bank to which they were creditors. The bank sought to have the advocate disclose the
information he relayed to the client. He pleaded privilege. The court rejected the plea of
privilege and ordered that the information and various documents be disclosed. The court held
thus;
“Where the dominant purpose of a legal advice was not to explain the legal effect of
what had already been done and subsequently become the subject of existing or
imminent litigation but to structure a transaction which had yet to be carried out which
had been plainly been devised to prejudice the interest of the creditor and the purpose
of seeking advice was sufficiently iniquitous for public policy to require that the
communication between the legal advisor and the transaction should be
discoverable…”4
1
[1982] 1 S.C.R. 860.
[1999] 1 S.C.R. 565 paras. 55–61.
3
[1995] ALL ER 511.
4
Ibid at 525.
2
In the above case, the legal advice had been sought by the defendants so as to set a transaction
at an undervalue price which was very prejudicial to the Bank. The case however creates a
qualification that the dominant purpose for seeking the legal advice must be motivated by an
existing or imminent litigation.5 This qualification has been subject of litigation but is now well
settled in England whose provisions of their law of evidence is at pari materia with Kenyan
provision and a court in Kenya faced with the same issue may find their position to be
persuasive. In the case of Grant v Down 6for instance, the Court of Appeal of England held that
information will be regarded as privileged if the sole reason for its generation was litigation.
The House of Lords in The case of Waugh v British Railway Board7 overruled the decision in
Grant case and criticized it on ground that it was in favour of release of privileged information
as it was to relaxed. In Waugh case, the appellant wanted a report on an occurrence of an
accident where she had lost her husband. The respondents argued that the information was
privileged as it was in the power of the solicitor for the purpose of the litigation. They however
argued that the report had not been prepared solely for the purposes of litigation but for
purposes of avoiding future accidents. The court held that had where the dominant effect of
certain information within the power advocate was partly generated for the purpose of litigation
and partly because of other reason, such information would be privileged and an advocate
would not be compelled to produce it. However, if the information was not generated for
purposes of litigation or the litigation was not imminent, the information is not privileged and
an advocate can be compelled to disclose it. The court in Waugh Case therefore ordered the
production of the report as it had not been prepared for purposes of litigation, neither was
litigation in contemplation.
Common Law Exceptions
In addition to statutory exceptions, common law provides the following exceptions to legal
privilege, even when the dominant purpose test is satisfied. These exceptions apply in
circumstances:
a) Waiver by a client
Waiver of a privilege is a domain of a client not the advocate. A waiver may occur either
explicitly or implicitly. It could also happen unintentionally in proceeding. Explicit or
voluntary waiver occurs when a client understanding there is a privilege chose to voluntarily
disclose confidential information. In Kenya, S. 134 (1) of the Evidence has codified the
common law’s express waiver. An illustration of an express waiver can be discerned from Virji
& others v Sood8 where the defendant upon receipt of a demand letter from the plaintiff
requiring payment of debt approached an advocate and after a discussion, the client instructed
the advocate to call the advocates who had issued a demand letter to ask them whether the
dispute can be taken to arbitration. However contrary to arbitrate the matter, the matter was
later filed in court. During the hearing, the plaintiff attempted to call the advocate who
5
Ibid.
[1976] 135 C.L.R 674.
7
[1980] AC 521.
8
[1973] EA 145.
6
negotiated for arbitration as witness. The advocate declined citing it would lead to disclosure
of privileged information. The Court rejected the argument and said that the information that
was sought had been relayed to the other party on express instructions of the client and no
privilege could be pleaded.
Waiver by implication occurs in several ways. Firstly, it can occurs when an advocate though
not a party to a suit was permitted to testify or file an affidavit, and in such instance: an exclient has brought an action touching on the instructions issued by the advocate into issue
before court as was in Harich v Stamp9. Also when an ex-client made allegations or imputations
against his former advocate in testimony as was in R v Dunbar & Logan.10
Secondly, implied waiver can occur when a lawyer undertakes proceedings to realize his fees.
There are number of justifications to this. For instance; protection of lawyer’s economic
interest; prevention of clients who might take advantage of privilege and that not permitting
disclosure when attempting to collect fees would result in more demands for payment up front,
thus increasing costs and decreasing availability of legal services to some clients.11
Thirdly, whenever a client brings legal proceedings against a former advocate, a client will be
deemed to have waived the privilege implicitly.12 This was held in the case of Nelson O
Kadison v Advocates Complaints Commission & another.13 In this case the petitioner a
requested that The Advocate Complaints Commission do supply him with the details of
complaint filed against one Mathew Oseko an advocate. He alleged that the information was
crucial as it would disqualify Mr. Oseko from holding a public office. The commission turned
down the request on grounds that the information requested for was protected under privileged.
The petitioner filed a constitutional petition to compel the commission to give him the
information requested. The court disallowed the argument by the commission on among other
grounds that once a client filed a complaint against an advocate in a public body, the privilege
will be deemed to be waived. The court held thus;
“The filing of a complaint to the public body by the client constitutes a waiver by that
client of the privilege. The advocate/client privilege is for the benefit of the client and
cannot be asserted by a third party, in this case the Commission nor can such privilege
be used to shield the Commission from its legal obligation flowing from Article
35(1)(a).”14
9
(1979), 27 O.R. (2d) 395, 106 D.L.R. (3d) 340, 59 C.C.C. (2d) 87 (Ont. C.A.).
(1982), 138 D.L.R. (3d) 221, 68 C.C.C. (2d) 13 at 39-42 (Ont. C.A.)
11
Felicia S. Folk, Two Exceptions to a Lawyer’s Duty of Confidentiality: The Right to Reveal Confidential
Information in Defence of Reputation and in Pursuit of Fees.
https://www.lawsociety.bc.ca/docs/practice/resources/Confidentiality-exceptions.pdf <accessed on August 5,
2014>
12
See Kyalo Mbobu, ‘The Law & Practice of Evidence in Kenya, 2011. Pg 164.
13
(2013) eKLR.
14
Ibid.
10
b) Public Interest
Public interest may render disclosure of privilege information. For instance, for purposes of
accountability in decision making, government bodies or agencies may be required in the
interest of the public to make disclosures. Other domains of public interest are security and
public health. In Solosky v. Queen15, it was held that with appropriate safeguards, the privilege
should give way to “the public interest in maintaining the safety and security of a penal
institution, its staff, and its inmates.” Solosky was an inmate at Millhaven Penitentiary who
brought proceedings for a declaration that his correspondence with his lawyer should be treated
as privileged. Solosky sought this declaration because the officials at Millhaven had authority
under the Penitentiary Act to open and censor mail, amongst other reasons, to safeguard the
security of the prison. The court dismissed Solosky’s application.
In Smith v. Jones,16 the Supreme Court of Canada recognized a public safety exception to
lawyer-and-client privilege, and the court noted that the exceptions to privilege were not a
closed class. The case arose because a psychiatrist, given the pseudonym Dr. Smith, was
retained by the defence counsel of an accused, given the pseudonym Mr. Jones. Mr. Jones was
charged the aggravated sexual assault of a prostitute in Vancouver. Dr. Smith’s psychiatric
assessment was to be in aid of preparing a defence for Mr. Jones or for submissions on
sentencing in the event of a guilty plea. As a result of his interview with Mr. Jones, it was Dr.
Smith’s opinion that Mr. Jones was a serious danger to other prostitutes in Vancouver. When
Dr. Smith ascertained that defence counsel did not propose to disclose this information to the
court, he applied for permission to disclose the information. It was accepted that this
application should be treated as a request for an exception to lawyer-and-client privilege on the
grounds of a “public safety exception.” The Court granted Dr. Smith’s application, and, in
doing so, the majority of the court fashioned a narrow and strict exception to the general rule
of privilege.
c) An Action against an Advocate by an Ex-Client
If a client makes a complaint against an advocate or if the advocate is facing criminal or
disciplinary charges then the advocate is entitled to disclose any confidential information with
regard to the accusations.
d) “Innocence-at-stake Exception”
This exception originated from the case of Smith v Jones17. The Court in Smith pronounced
that an exception to legal privilege could arise where an accused to give full answer and defence
to criminal charges, which exception is necessary to protect the innocence of an accused, who
is allowed to defend himself or herself.18 This rule has come to be known in Canada as McClure
15
[1980] 1 S.C.R. 821.
[1999] 1 S.C.R. 455.
17
ibid
18
Also see R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.); R. v. Mills (1999), 139 C.C.C. (3d)
321 (S.C.C.); R. v. Murray (2000), 48 O.R. (3d) 437 (S.C.).
16
application since the Court in R. v McClure19 set out a two stage criteria that an accused person
has to satisfy before being granted disclosure of privilege communication held by state.
To test of a McClure application, the accused must first establish that the information he or she
seeks from the privileged communication is not available from any other source and that he or
she is otherwise unable to raise a reasonable doubt as to his or her guilt. If the threshold test is
satisfied, then in the first stage of the innocence-at-risk test, the accused has to demonstrate an
evidentiary basis to prove that a communication exists that could raise a reasonable doubt as to
his or her guilt. Then, in the second stage of the test, the trial judge must examine the
communication to determine whether, in fact, it is likely to raise a reasonable doubt as to guilt,
in which case, the privilege must yield to the accused person’s right to make full answer and
defence.20
e) If a communication, which is otherwise privileged, is to be founded upon in
pleadings to the litigation or led as evidence
f) Admitting that the communication exists does not automatically waive its
confidential status
One has to justify the requirements of privilege information. The Supreme Court holding
in Slavutych v. Baker21 could be of guidance in deciphering communications deemed
privilege. They are as follows:
(i) the communications must originate in a confidence that they will not be disclosed;
(ii)
this element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties;
(iii)
the relation must be one which, in the opinion of the community, ought to be
sedulously fostered; and
(iv)
the injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
disposal of litigation.
19
[2001] 1 S.C.R. 445.
Paul M. Perer, Privilege Primer, available at
http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=11517 <accessed on August 20, 2014>
21
[1976] 1 S.C.R. 254, [1975] 4 W.W.R. 620, 55 D.L.R. (3d) 224.
20