OUTLINE

CHAPTER ONE

1.0 INTRODUCTION

1.1 DEFINITIONS

1.1.1 Advocate

1.1.2 Client

1.1.3 Confidentiality

1.1.4 Privilege

1.1.4.1 Legal Professional Privilege

1.1.4.2 Litigation Privilege

1.2 BRIEF HISTORY

CHAPTER TWO

2.0 SPROUTING OF CONFIDENTIALITY AND LEGAL PRIVILEGE

2.1 The Advocate Client Relationship

2.1.1 Who is an advocate?

2.1.2 Who is a client?

2.1.3When is the relationship formed?

CHAPTER THREE

3.0 LEGAL FRAMEWORK ON CONFIDENTIALITY AND LEGAL

PRIVILEGE

3.1 Constitution of Kenya, 2010

3.2 The Proceed from Crime and Anti Money Laundering Act

No. 9 of 2009

3.3 The Evidence Act, Cap 80, Laws of Kenya

CHAPTER FOUR

4.1 DUTY OF CONFIDENTIALITY

4.1 THE NATURE, SCOPE, JUSTIFICATION AND CONDITIONS FOR

LEGAL PROFESSIONAL PRIVILEGE AND CONFIDENTIALITY

4.1.1 Legal Professional Privilege

4.1.2 Litigation Privilege

4.1.3 General Duty of Confidentiality

4.1.4 Acting for Both Parties: conflict of interest and

confidentiality

4.2 EXCEPTIONS TO ADVOCATE-CLIENT PRIVILEGE

4.2.1 The Constitution of Kenya, 2010 exception: PublicInterest considerations as to 4.2.2 Access of Information

4.2.3 The Evidence Act, Cap 80

4.2.4 Common Law Exceptions

CHAPTER FIVE SHOULD WE HAVE COMPARATIVE ANALYSIS

5.0 COMPARATIVE ANALYSIS

5.1 common law generally

5.2 England and Wales

5.3 Australia

5.4 Canada

5.5 United States

CONCLUSION

REFERENCES NOT YET EXHAUSTED

INTRODUCTION

This paper seeks to interrogate the issue of

confidentiality in advocate client relationship. The

scope will encompass the purpose or objective of

confidentiality and legal privilege; the circumstances in

which confidential or privileged information can be

disclosed by an advocate; and the circumstances in which

an advocate can be compelled to disclose confidential or

privileged information.

DEFINITIONS

Advocate

The Advocates Act, Cap 16 at section 2 succinctly defines

an advocate as any person whose name is duly entered upon

the Roll of Advocates or upon the Roll of Advocates

having the rank of Senior Counsel. This definition also

extends to any persons mentioned in section 10 who hold

the necessary qualifications as per section 13 (1); (a),

(b) and (c) 1which includes officers in the Attorney

General’s Office, Principle Registrar of Titles, any

Registrar of Titles, any person holding office in a local

authority under the defunct Local Government Act; so long

as they do not charge fees, for purposes of Part IX of

the Act.2

1 Section 13 (1) (a-c) of the Advocates Act provide that a person shall be qualified if (a) having passed the relevant examinations of any recognized university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or (b) having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve; and thereafter both— (i) he has passed such examination as the Council of Legal Education may prescribe other than those examinations passed by him for the purposeof obtaining a degree referred to the paragraph (a) or (b); or (ii) he has passed such examination as the Council of Legal Education may prescribe; or(c) he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education. 2 Part IX of the Act examines the remuneration of advocates

Client

The law defines a client as including, ‘any person who,

as a principal or on behalf of another, or as a trustee

or personal representative, or in any other capacity, has

power, express or implied, to retain or employ, and

retains or employs, or is about to retain or employ an

advocate and any person who is or may be liable to pay to

an advocate any costs.’3

Confidentiality

Confidentiality is an ethical duty. Confidentiality

provides that, subject to certain exceptions, an advocate

must keep confidential all information related to the

representation of the client.

Confidentiality has been defined to mean secrecy; the

state of having the dissemination of certain information

restricted. It has also been defined as the relation

between lawyer and client or guardian and ward, or

3 Section 2 Advocates Act, Cap 16 Laws of Kenya

between spouses, with regard to the trust that is placed

in the one by the other.4

Confidentiality can be distinguished from privilege by

looking at the scope of the information protected from

disclosure.

Barrister Daniel Greenberg, in Jowitt’s Dictionary of

English Law notes that the law usually protects

confidential communication from disclosure in many but

not in all cases.5 Black’s law dictionary defines

confidentiality as “secrecy; the state of having the

dissemination of information restricted.” In addition, it

defines it as “the relationship between lawyer and client

with regard to the trust that is placed in the one by the

other.” Confidential communication on the other hand has

been defined as “a communication made within a certain

protected relationship and legally protected from

compelled disclosure in a legal proceeding. It goes ahead

to note that among confidential relationships are those

among an attorney and client.

4 Blacks Law Dictionary, 8th Edition5 Greenberg D, Jowitt’s Dictionary of English Law, Sweet & Maxwell, 3rd Edition, Volume 1:A-I pg 507

Confidentiality offers protection to information that

clients have given to their advocates.6 There is imposed a

duty of confidentiality on every Advocate to eternally

protect his client’s secrets.7 What this means is that the

duty is perpetual, unlike privilege, confidentiality

subsists even after the relationship between the advocate

and the client has ended."8

Confidentiality is very broad in that it covers all types

of communication and information between the advocate and

the client. It includes telephone call conversations,

text messages, emails, letters, faxes photographs and

other digital materials. By way of an example, if a

client you are representing, charged with murder,

discloses to you as his advocate the location where he

has hidden the body of his victim, as an advocate you are

bound by privilege and the duty of confidentiality not to

divulge or disclose such information. However, should a

6 Roy M. Sobelson, Lawyers, Clients, and Assurances of Confidentiality: Lawyers Talking Without Speaking, Clients Hearing Without Listening, 1 Geo. J. Legal Ethics 703, 71213 (1988).7 Flatt v. Superior Ct, 885 P.2d 950, 958.8 United States v. Moscony, 927 F.2d 742, 749 n.7 (3d Cir. 1991). Seealso Model Rules of Professional Conduct Rule 1.6 cmt. 21 (1983).

client walk into your office holding a blood stained

dagger that he used to commit a murder, your legal

obligations as an advocate will compel you to reveal that

information. This is when the exceptions to

confidentiality arise.9

Privilege

Privilege has been defined as a special legal right,

exemption, or immunity granted to a person or class of

persons; an exception to a duty. Privilege grants someone

the legal freedom to do or not to do a given act. It

immunizes conduct that, under ordinary circumstances,

would subject the actor to liability. Further attorney-

client privilege has been defined as the client's right

to refuse to disclose and to prevent any other person

from disclosing confidential communications between the

client and the attorney.10

Privilege is a rule of evidence that protects information

that an advocate acquires from his client.11 Privilege

9 Why your secrets are safe with your lawyerOttawa Citizen, April 6, 2012 Friday, CITY; Michael Edelson; Pg. C2, 1024 words, Michael Edelson, Ottawa Citizen10 Blacks Law Dictionary, 8th Edition11 J. Wigmore, Evidence page 2292 (3d ed. 1961).

prevents the disclosure of such information by the

Advocate when compelled to testify as a witness or to

produce evidence in an official proceeding. Therefore,

the scope of privilege is limited by the very nature of

information it protects with regard to who is privy to

that information. This advocate client privilege is

invalidated if the information is a matter of public

knowledge. Advocate-client privilege may also not be

relied upon where a third party outside the Advocate-

client relationship is privy to the information. Once the

attorney-client privilege protection has attached, it

will continue to protect the communication until the

client waives it.

In the City & County of San Francisco v Superior Court, 231 P.2d 26,

30 (Cal. 1951), it was held that:

The privilege is given on grounds of public policy in the belief that the

benefits derived therefrom justify the risk that unjust decisions may

sometimes result from the suppression of relevant evidence. Adequate

legal representation in the ascertainment and enforcement of rights or

the prosecution or defence of litigation compels a full disclosure of the

facts by the client to his attorney. “Unless he makes known to the

lawyer all the facts, the advice which follows will be useless, if not

misleading; the lawsuit will be conducted along improper lines, the

trial will be full of surprises, much useless litigation may result. Thirdly,

unless the client knows that his lawyer cannot be compelled to reveal

what is told him, the client will suppress what he thinks to be

unfavourable to the facts.” Give the Privilege, a client may make such

disclosure without frat that his attorney may be forced to reveal the

information confided to him. “The absence of the privilege would

convert the attorney habitually and inevitably into a mere informer for

the benefit of the opponent.”

Privileged communication has been defined as “a

communication that is protected by law from compelled

disclosure in a legal proceeding, or that cannot be used

against the person who made it.”

At common law, there are a number of ways to organize the

essential elements of attorney-client privilege to

provide for an orderly analysis. Black’s law refers to

Wigmore’s schema: ‘(1) Where legal advice of any kind is

sought (2) from a professional legal adviser in his

capacity as such (3) the communications relating to that

purpose (4) made in confidence (5) by the client (6) are

at his instance permanently protected (7) from disclosure

by himself or by the legal adviser (8) except the

privilege be waived.’12

Legal Professional Privilege

Legal professional privilege protects confidential

communications.

In the case of Three Rivers District Council v Governor and Company of

the Bank of England (No. 6) [2004] UKHL 48; [2005] a A.C. 610, it

was noted that when a client communicates to his advocate

or when lawyers communicate to each other during and with

reference to judicial proceedings, or in relation to the

client’s rights or obligations,, including advice on the

presentation of a case to an inquiry that communication

is protected from disclosure.

In Ventouris v Mountain [1991] 1 W.L.R. (607) it was stated that

the rationale behind legal professional privilege was

12 John Henry Wigmore, Evidence in Trials at Common Law pages 2292, at 554 (John T. McNaughton rev. 1961)

“public interest considerations in relation to actual and

contemplated litigation requiring actual and potential

litigants to be able to speak freely to their legal

advisors and for legal advisors to be able to give candid

legal advice without of disclosure.”

Similarly, in the case of United States v Upjohn Co., 600 F. 2d

1223, 1225-26 (6th Cir. 1979) the court brought out that

the rationale of having privileged communication which is

information that cannot be discovered or used against the

client is the basic notion that the client will be

motivated to be more frank with his advocate. In this

case, quoting Fisher v United States 425 U.S. 391, 403

(1976) it was stated:

“The attorney client privilege, as it exists today, is based on two related

principles. The first is that it is an intrinsic part and a necessary incident

of the attorney-client relationship. The legal profession has an intimate

relationship with its clients and an important role in the administration

of our system of justice. Privacy is the necessary context of the

relationship between the individual and his lawyer… the second principle

is that the privilege encourages clients to make full disclosure to their

attorneys. This policy of promoting full disclosure to counsel serves to

implement the notion inherent in the first principle, that finding the

truth and achieving justice in an adversary system are best served by

fully-informed advocates loyal to their client’s interests.”

Litigation Privilege

Litigation privilege protects communications, including

communications with third parties, which come into

existence for the dominant purpose of gathering evidence

for use in proceedings.

In People v Gionis, 892 P.2d 1199,1204-05 (Cal. 1995) the

court reiterated that advocate client privilege is

founded on grounds of public policy. It was stated:

“Without the ability to make a full disclosure of the facts to the

attorney, the client risks inadequate representation… by encouraging

complete disclosures, the attorney-client privilege enables the attorney

to provide suitable legal representation.”

Brief History

Confidentiality manifests itself in a variety of business

and professional relationships for example between

employers and employees; doctor and patient; priests and

penitents; accountants and their clients; spouses, etc.13

However, the focus of this essay is on the

confidentiality that exists between advocate and client.

The case of Baird v Kperner, 279 F. 2d 623,629-30 (9th

Cir. 1960) highlights the core essence of

confidentiality. In this case it was stated:

“While it is the great purpose of law to ascertain the truth, there is the

countervailing necessity of insuring the right of every person to freely

and fully confer and confide in one having knowledge of the law, and

skilled in its practice, in order that the former may have adequate

advice and a proper defence. This assistance can be made safely and

readily available only when the client is free from consequences of

apprehension of disclosure by reason of the subsequent statements of

the skilled lawyer.”

13 Greenberg D, Jowitt’s Dictionary of English Law, Sweet & Maxwell, 3rd Edition, Volume 1:A-I pg 507

The principle of confidentiality and privilege of client

information is a doctrine of Anglo American law.14 It

dates back to the eighteenth century. At that time

attorneys were not allowed to disclose their clients

“secrets”.

The case of Waldron v Ward (1654), 1 Style 449, 82 E.R. 853,

appears to be the first case which accepted the existence

of privilege for communications passing between legal

counsel and their clients. In this case it was noted

that:

“the counselor is not bound to make answer for things which may

disclose the secrets of his client’s cause and thereupon he was forbore

to be examined.”

Another earliest recorded instance of the principle in

English case-law dates from 1577 in the case of Berd v

Lovelace:

14 Attorney's Personal Observation as Within Attorney-Client Privilege, 19 Wash. & Lee L. Rev. 134 (1962), http://scholarlycommons.law.wlu.edu/wlulr/vol19/iss1/16 accessed 7/08/2014

Thomas Hawtry, gentleman, was served with a subpoena to testify his

knowledge touching the cause in variance; and made oath that he

hath been, and yet is a solicitor in this suit, and hath received several

fees of the defendant; which being informed to the Master of the Rolls,

it is ordered that the said Thomas Hawtry shall not be compelled to be

deposed, touching the same; and that he shall be in no danger of any

contempt, touching the not executing of the same process.

The relationship between an advocate and his client was

one of a confidential nature whereby the advocate was

under a duty to keep secret any information his client

had disclosed to him. Privilege therefore resulted from

the honour and dignity of the legal profession. It

covered all form of communication and was not based on

the kind of communication (i.e. whether it was

confidential or secret in nature was irrelevant).

The above is illustrated in the American case of Andrew v

Solomon, 1 F. Cas. 899, 900-01 (C.C.D. Pa. 1816) (No.

378) where it was stated that:

“An attorney is not permitted to disclose as a witness, the secrets of his

client, because in doing so, he would betray a confidence, which from

necessity the client must repose in him”

This quote illustrates the fact that the confidentiality

arose from the advocate client relationship and it

mattered not the content of the communication.

In 1981, the first edition of the Black’s Law dictionary

was published. In that edition, “privileged

communication: was defined in the law of evidence to be

“a communication made to a counsel, solicitor, or attorney in professional

confidence, and which he is not permitted to divulge; otherwise called a

‘confidential communication.”15

On the other hand “confidential communications” were

defined as communications passing between persons who

stand in a confidential or fiduciary relation to each

other, (or who, on account of their relative situation,

are under a special duty of secrecy and fidelity), which

the law will not permit to be divulged, or allow them to15 Black’s Law Dictionary 941 (St. Paul, Minn., West 1891)

be inquired into in a court of justice, for the sake of

public policy and the good order of society. Examples

given of such privileged relationships were those between

husband and wife and attorney and client.16

Towards the end of the nineteenth century, the courts

became reluctant to accept that information revealed in

the presence of third parties was privileged.

For example, in the case of People v Buchanan, 39 N.E.

846, 854 (N.Y. 1895) it was held that any communication

intended to be confidential should not be made in the

hearing of a third person unless that person stood in a

peculiar relation of confidence… the protection extended

by the statute to communications between attorney and

client is intended to cover those which the relation

calls for, and are supposed to be confided to the lawyer

to guide him in giving his professional aid and advice.

The principle of confidentiality and privilege of client

information has since evolved and today, the general rule16 Black’s Law Dictionary 249 (St. Paul, Minn., West 1891)

is that communications made by a person to his advocate

in his professional capacity are, in most circumstances,

privileged and, subject to certain exceptions, neither

solicitor not client can be compelled to disclose the

contents of such communications where they were intended

to be confidential.

Hence, unless the client waives the privilege, his

advocate is under a duty not to disclose the information.

The foregoing being mentioned, it is noteworthy how the

confidentiality or legal privilege arises. This will

expound in the next chapter.

CHAPTER TWO

SPROUTING OF CONFIDENTIALITY AND LEGAL PRIVILEGE

The Advocate Client Relationship

Who is an advocate?

The Advocates Act, Cap 16 at section 2 succinctly defines

an advocate as any person whose name is duly entered upon

the Roll of Advocates or upon the Roll of Advocates

having the rank of Senior Counsel. This definition also

extends to any persons mentioned in section 10 who hold

the necessary qualifications as per section 13 (1); (a),

(b) and (c)17 which includes officers in the Attorney

17 Section 13 (1) (a-c) of the Advocates Act provide that a person shall be qualified if (a) having passed the relevant examinations of any recognized university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or (b) having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve; and thereafter both— (i) he has passed such examination as the Council of Legal Education may prescribe other than those examinations passed by him for the purposeof obtaining a degree referred to the paragraph (a) or (b); or (ii) he has passed such examination as the Council of Legal Education may prescribe; or(c) he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education.

General’s Office, Principle Registrar of Titles, any

Registrar of Titles, any person holding office in a local

authority under the defunct Local Government Act; so long

as they do not charge fees, for purposes of Part IX of

the Act.18

The Appeals Court in Charles Ndungu Githuka v Republic19 stated

that a person whose name had been entered in the Roll of

Advocates would then prima facie be an advocate and remain

such until it should be removed therefrom either upon

application by the advocate under Section 59 or being

struck off under Section 60 (4) (c) as a disciplinary

measure. The Appeals Court faulted the trial court for

finding that the appellant was not an advocate by virtue

of the fact that he did not hold a practicing

certificate. The Appeals Court instead held that one

would cease to be an advocate by removal from the roll of

advocates through disciplinary process and that the

failure to renew a practicing certificate did not operate

to remove one from the roll of advocates and that it

merely disqualified one from acting as an advocate.

18 Part IX of the Act examines the remuneration of advocates 19 Criminal Appeal No. 595 OF 2010 [2014] eKLR

The effect being that for so long as a name remains on

the roll of advocates that person shall be deemed to be

an advocate regardless of the lack of qualifications to

practice as an advocate as per section 9 of the Advocates

Act which are that one has to be admitted as an advocate

with their name on the Roll and have a practising

certificate in force.

The provisions of articles 34 and 31 touching on

prohibited actions in relation to unqualified persons do

not operate to negate the duty of confidentiality and the

privilege accorded to advocate-client communications.

As such in relation to the question of Mr. Waiganjo, it

is shall be sufficient to establish that he is an

advocate and not necessarily a practicing advocate.

Who is a client?

Section 2 of the Advocates Act also defines a client as

including

‘ any person who, as a principal or on behalf of another, or as a trustee

or personal representative, or in any other capacity, has power, express

or implied, to retain or employ, and retains or employs, or is about to

retain or employ an advocate and any person who is or may be liable to

pay to an advocate any costs’

This broad definition has been affirmed by the courts in

Mwalimu Kalimu Gamumu & 35 others v Coastline Safaris Limited & 2

others20 and Oriental Commercial Bank Limited V Central Bank of

Kenya.21

When is the relationship formed?

Mabeya J in Oriental Commercial Bank Limited V Central Bank of

Kenya22 posits that in order for a client-advocate

relationship to arise there has to be a retainer; a party

must employ and/or instruct an advocate to offer legal

services. The learned judge stated,

‘It is trite law that a client-advocate relationship arises when a client

retains an Advocate to offer legal services specifically or generally’

The learned judge proceeded to cite with approval the

definition of a retainer set out by Blacks Law

Dictionary, 6th Edition which provides;

20 [2013] eKLR21 [2012] eKLR22 Ibid

‘In the practice of Law, when a client hires an attorney to represent

him, the client is said to have retained the Attorney. This act of

employment is called the retainer. The retainer agreement between the

client and attorney sets forth the nature of services to be performed,

costs, expenses and related matters’

As was noted by the court in Ahmednasir Abdikadir & Co.

Advocates v National Bank of Kenya Ltd23, a retainer need

not be in writing, it can be express or implied. In

affirmation of this position, the court in Ritesh Nandlal

Pamnani & another V Dhanwanti Hitendra Hirani & 2 others24 noted

that the existence of the relationship can be implied

from the dealings between the parties.

An alternative approach was posited by the court in

Togstad v. Vesely, Otto, Miller & Keefe25. The court considered the

tests in contract and negligence as developed in other

cases and noted;

23 (2007) eKLR24 [2012] eKLR25 291 NW 2d 686

Under a negligence approach it must essentially be shown that

defendant rendered legal advice (not necessarily at someone's

request) under circumstances which made it reasonably

foreseeable to the attorney that if such advice was rendered

negligently, the individual receiving the advice might be injured

thereby. See, e. g., Palsgraf v. Long Island R. Co.,

248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928). Or, stated another

way, under a tort theory, "[a]n attorney-client relationship is

created whenever an individual seeks and receives legal advice

from an attorney in circumstances in which a reasonable person

would rely on such advice." 63 Minn.L.Rev. 751, 759 (1979). A

contract analysis requires the rendering of legal advice pursuant

to another's request and the reliance factor, in this case, where the

advice was not paid for, need be shown in the form of promissory

estoppel. See, 7 C.J.S., Attorney and Client, § 65; Restatement

(Second) of Contracts, § 90.

In examining whether there was an advocate client

relationship the court considered that in that based on

the facts before it, it was unnecessary to decide between

the contract and tort law tests in determining whether an

advocate client relationship had been created as the

evidence in that case was sufficient to satisfy each

test. The court found that in that particular case the

plaintiff had sought, received and relied on the

professional advice of the defendant under circumstances

which made it reasonably foreseeable to the defendant

that the plaintiff would be injured if advice was

negligently given. The fact that the plaintiff had not

paid any fees was of no import.

For there to be confidentiality or legal privilege

between a client and an advocate there has to be a legal

relationship between the two. As such, in examining

whether an advocate client relationship existed, the

tribunal ought to consider;

If there was a retainer

if instructions had passed,

if advice had been sought, received and relied on

under circumstances which made it reasonably

foreseeable to the giver that the recipient would

be injured if advice was negligently given

the conduct of and dealings between the parties

The fiduciary nature of the relationship and the duty of care in relation

to the duty of confidentiality

The advocate client relationship as defined in Mwalimu

Kalimu Gamumu & 35 others v Coastline Safaris Limited & 2 others26 is

one of a contract for services and not a contract of

service despite the use of the words ‘employ’ and

‘retain’ in defining the client at section 2 of the

Advocates Act.

The advocate is an independent contractor with duties to

the client arising directly from the client’s legal

rights. Marvin (1995)27 argues that to the extent that the

law gives the client a recognized; legal interest, the

attorney has a legal and ethical duty to protect that

interest. However some of the duties imposed on the

advocate are creations of contract, tort and common law

dictates besides those imposed by statute and

26 [2013] eKLR27 Marvin R. Ventrell, Rights and Duties: An Overview of the. Attorney-Client Relationship, 26 LOY. U. CHI. L. J. 259 (1995)

professional codes of conduct. These obligations are

enforceable by suit and the breach of which may render

the advocate subject to disciplinary action.

The relationship can be characterized as fiduciary,

contractual, one of principal and agent and one of

officer of justice and a consumer of legal services

The fiduciary duty of confidentiality

The fiduciary relationship imposes the highest standard

of care on the advocate and places an obligation of

loyalty such that there is no conflict of interest and

that the advocate cannot profit from their position

without the consent of the client and most pertinent to

this situation is the duty of confidentiality. The

advocate is not allowed to disclose information without

the client’s consent.28 This duty is laid out at Rule 3 of

the Law Society of Kenya Digest of conduct and Etiquette

2000 and is an inherent and crucial element of the

advocate-client relationship.

The obligations arising out of the fiduciary nature of

the relationship will outweigh contractual ones and will28 This duty is also encompassed by Section 134 of the Evidence Act

in fact attach despite the non-existence of a contract

and will survive the termination of a contract if any.

Lord Millett in Bristol and West Building Society v Mothew

29defined a fiduciary as someone who has undertaken to act

for and on behalf of another in a particular matter in

circumstances which give rise to a relationship of trust

and confidence.

The Court in Strathmore Research Centre and Consulting Centre V

Paul Maina Gacari30 cited with approval the writings in

Halsburys Laws of England 3rd Edition Vol. 3 paragraph 67 which

observe;

“Duty not to disclose or misuse information - The Employment of

counsel places him in a confidential position, and imposes upon him

the duty not to communicate to any third person the information

which has been confided to him as counsel to his client’s detriment (p).

This duty continues after the relation of counsel and client has ceased.”

In King Woolen Mills Ltd v Kaplan & Stratton Advocates31 the Court

of Appeal at page 250 found that:

29 [1998] Ch 130 [2012]eKLR31 (1990 – 1994) EA 244 

“The fiduciary relationship created by the retainer between client

and advocate demands that the knowledge acquired by the Advocate

while acting for the client be treated as confidential and should not be

disclosed to anyone else without the client’s consent. That fiduciary

relationship exists even after conclusion of the matter for which the

retainer was created.”

This duty is not absolute and confidentiality can be

breached where the advocate receives any communication

made in furtherance of any illegal purpose or where

the advocate’s attention is drawn; regardless whether

it is by the client or on behalf of the client to any

fact showing that any crime or fraud has been

committed since the commencement of his employment.

Confidentiality can also be breached with the client’s

consent and when required by court

Duty of care in handling client matters

The duty of care is an inherent duty owed by the advocate

to the client by virtue of the mere existence of the

relationship. As has been established hereinabove and in

the cases below it is of no import whether there was a

contract in place or whether consideration had passed.

In Hedley Byrne & Co Ltd v Heller & Partners Ltd32 the court noted

that the advocate owes the client a duty of care where

they undertake to assist a person who relies on their

skill. The court stated,

“I consider that it follows and that it should now be regarded as settled

that if someone possessing special skill undertakes, quite irrespective

of contract, to apply that skill for the assistance of another person

who relies upon such skill, a duty of care will arise. The fact that the

service is to be given by means of or by the instrumentality of words can

make no difference. Furthermore, if in a sphere in which a person is so

placed that others could reasonably rely upon his judgment or his

skill or upon his ability to make careful inquiry, a person takes it

upon himself to give information or advice to, or allows his

information or advice to be passed on to, another person who, as he

knows or should know, will place reliance upon it, then a duty of care

will arise.”

Lord Devlin in this case further stated,

‘I shall therefore content myself with the proposition that

wherever there is a relationship equivalent to contract there is a32 [1964] AC 465

duty of care. Such a relationship may be either general or

particular. Examples of a general relationship are those of

solicitor and client and of banker and customer. For the former

Nocton v. Ashburton has long stood as the authority and for the latter

there is the decision of Salmon, J. in Woods v. Martins Bank which I

respectfully approve. There may well be others yet to be established.

Where there is a general relationship of this sort it is unnecessary

to do more than prove its existence and the duty follows. Where, as

in the present case, what is relied on is a particular relationship

created ad hoc, it will be necessary to examine the particular facts to

see whether there is an express or implied undertaking of

responsibility.’

The court in National Bank of Kenya Limited V E. Muriu Kamau &

Another33 noted that

‘There is plainly a duty on all advocates to exercise exceptional care in

handling matters on behalf of their clients.  However, the standard of

care depends on the circumstances in each particular case.  So long as

there is an assumption of responsibility by the professional men, he

owes a duty of care to all those relying on his skills and judgement…

The law places a responsibility on all professionals to exercise prudent

33 [2009]eKLR

and reasonable care for the safety, security and protection and

preservation of the property/life entrusted on them.’ 

Having established that indeed the duty of

confidentiality is an inherent element of the advocate

client-relationship it is only prudent to look at the

legislative backing of the same in Kenya.

CHAPTER THREE

LEGAL FRAMEWORK ON CONFIDENTIALITY AND LEGAL PRIVILEGE

Introduction

Breach of confidence is a tort that is actionable ipso

facto. The tort is premised on the equitable obligation of

confidence where a person is in receipt of information of

a confidential nature in circumstances importing an

obligation of confidence. The law in the early ages

concerned itself with commercial secrets. The mode of the

acquisition of the information is crucial at all times

and even where a person has obtained the information

surreptitiously the court would be likely to find the

breach. The information and the circumstances of

disclosure are vital ingredients.34

Confidentiality will ordinarily not apply to information

in the public domain. Certain categories of relationship

imply confidentiality in information received and this

may form the basis of actions for breach of confidence in

the event of one person seeking to make such information

public. These include employees, husband and wife,

doctor-patient, lawyer-client and others where it may be

established that information passed under confidence. It

is important to note that an agreement may also and often

now does import confidentiality and any disclosure by a

party to an agreement and even third parties who may

receive the information and knows or ought to have known

its confidentiality will be open to an action for breach

thereof.35

The level of personal trust and confidence between a

lawyer and his client is ridiculously high. Therefore,

34Joseph Kihanya, ‘Social Media & Defamation; Freedom of the Press and the Law in Kenya’, The Law Society of Kenya Journal Volume 9 2013 NO. 1, page91.35Ibid.

privilege is granted to the client in an advocate- client

relationship.

Clients should be able to get full and sincere legal

advice, and to disclose information to their lawyers

without the fear of such knowledge becoming public, and

being used to their detriment later on. When there is a

surety, that information will not be disclosed, clients

are able to speak with confidence. As a rule, certain

matters are precluded from disclosure purely by public

policy.

This Chapter analyses the confidentiality in a Lawyer-

Client relationship as one of a fiduciary nature and the

legal basis for the same. It seeks to underscore the

scope of the duty of Lawyer to uphold confidentiality as

well as stating the limits to the same. To this end, the

chapter shall analyze the Constitution of Kenya 2010, The

Proceeds of Crime and Anti Money Laundering Bill, 2009,

Evidence Act, Advocates Act, the Income Tax Act and

the Digest on Advocates’ Professional Conduct and

Etiquette Rules.

Constitution of Kenya, 2010

The Constitution of Kenya 2010 envisages Confidentiality

under the right to privacy. 36In a democratic society, the

concept of privacy is deemed important as it serves a

vital democratic purpose and is essential for the

dignity, freewill and the well-being of an individual.

This understanding of privacy is especially viewed as a

restriction against unwarranted intrusion into an

individual’s life.

The definition of privacy in law, as in other

disciplines, is elusive and it is only by an elaboration

of why it is important that one is able to discern what

is required by the term. In this respect, four functions

of privacy have been mooted as being; personal autonomy;

opportunity for emotional release; self-evaluation and

opportunities for sharing confidences.37 It is perhaps in

the function of affording opportunity for emotional

release and sharing confidences that the concept of

privacy, and by extension confidentiality has been held

36Constitution of Kenya 2010, Article 28 and 31.37Supra note 1.

to be sacrosanct in the Lawyer-client relationship. The

Constitution also guards against the unnecessary use or

revelation of information relating to one’s family or

their private affairs. 38

The nature of the Lawyer-Client relationship is generally

one that is of a fiduciary nature. The client entrusts

the lawyer with details about his affairs or touching on

the matter at hand with the assurance that the Advocate

will keep the same confidential. Professional ethics

demand that the Lawyer has a duty to safeguard any

information that comes to his knowledge from the client

relating to the matter at hand.

However like any other right under the Constitution, the

right to privacy and confidentiality can be limited under

expressed conditions in the law.The Constitution outlines

the factors that should inform the limitation of such

right as, inter alia; the importance of the purpose of the

limitation; the nature and extent of the limitation; the

relation between the limitation and its purpose and

38Constitution of Kenya, 2010, Article 31(d).

whether there are less restrictive means to achieve the

purpose.39

In this regard, Lawyer-Advocate confidentiality also

can be limited only in exceptional circumstances with the

most common being where the information in the knowledge

of the Advocate entails public interest and serious

illegality that may affect the right of other third

parties.

The Proceed from Crime and Anti Money Laundering Act No.

9 of 2009

This legislation provides for the offence of money

laundering and introduces measures for combating the

offence, provides for the identification, tracing,

freezing, seizure and confiscation of the proceeds of

crime, and for connected purposes. Under the Act, any

obligation as to secrecy or other restriction on

disclosure of information imposed by any other law or

otherwise shall not override the provisions of the Act

39Constitution of Kenya, 2010, Article 24(1).

which require full disclosure. 40 The Act makes it an

offence to with hold any information in the knowledge of

a person with respect to the commission of the offence of

money laundering and such disclosure shall not attract

any liability.41

However, the Act places an exception to the Advocate-

Client relationship. It states that the requirement for

disclosure shall not affect or be deemed to affect the

relationship between an advocate and his client with

regard to communication of privileged information between

the advocate and the client.42 In essence, the Act places

premium on the confidentiality relationship between

advocate and client even in money laundering and related

offences under the Act and applies in connection with the

giving of advice to the client in the course and for

purposes of the professional employment of the advocate

or in connection and for the purpose of any legal

proceedings on behalf of the client.43

40 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 18(1).41 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 18(2).42 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 19(1)43 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 19(2)

Such information can only be only be obtained through the

Judge of the High Court who may, on application being

made to him in relation to an investigation under the

Act, order an advocate to disclose information available

to him in respect of any transaction or dealing relating

to the matter under investigation provided such

information was provided in the course of or for purposes

of professional employment of the advocate by the

client.44

The provisions of the said sections of the Act however do

not protect from disclosure any information made in

furtherance of any illegal purpose and any fact observed

by any advocate in the course of his employment as such,

showing that any crime or fraud has been committed since

the commencement of his employment, whether the attention

of such advocate was or was not directed to the fact by

or on behalf of his client.45

The Evidence Act, Cap 80, Laws of Kenya

44 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 19(3) (4).45 The Proceed from Crime and Anti Money Laundering Act No. 9 of 2009, section 19(4) (a) (b).

Under the law of Evidence, client to advocate

communications are privileged. Meaning, such

communications cannot be revealed, or used to the

client’s detriment. It is only the client who has the

power to waive that privilege. This duty is strict and

uncompromising; unbreakable, even where the advocate

believes that it is for the client’s good.

In our courts of law, sometimes evidence may be deemed

inadmissible simply because it belongs to a class which

on grounds of public policy should be withheld from

production46.

i. Privilege of an accused person

An accused person can never be compelled to testify

against himself in a court of law. That’s according to

the Evidence Act, Section 127(2) read together with

Article 50 of the Constitution of Kenya, 2010.

ii. Privilege of communications during marriage

46 Evidence Act, Cap 80, Laws of Kenya, Section 131,

A spouse cannot be compelled to disclose any information

given to him/ her during marriage47. For example, if a

husband made a confession to his wife of a committed

crime, the wife is privileged and may not disclose such

information before a court of law as a witness.

iii. Legal profession privilege

Professional privilege means that an advocate cannot

disclose any documents given to him by the client, or any

legal advice that he gave to the client48. An advocate

owes the client a duty of confidentiality, as a rule.

As was brought out in the case of Baselines Architects Ltd & 2

Others Vs. National Hospital Insurance Fund Board Management49, an

advocate should not be compelled to produce documents

unless there’s mutual consent between him and his client.

Disclosure of documents that would be injurious to the

public interest because they have information about the

affairs of an individual or institution is generally

unacceptable as a rule.

47 Evidence Act, Cap 80, Laws of Kenya, Section 130(1),48 Evidence Act, Cap 80, Laws of Kenya, Section 134,49 [2008] eKLR

Exceptions to the rule

Still in light of the above expressed sentiments on the

confidentiality doctrine, it is important to put in mind

the fact that privilege, being personal to whomever it is

conferred upon, can be waived.

Simply put, it is not the information that is privileged;

rather, it is the person! Privilege is personal to whom

it is conferred.

i. Privilege of an accused person waived

To inspire free flow of information in a court of law, an

accused is not privileged from answering questions that

may incriminate him. However, the privilege is that the

answers given will not be used against him. The

information can only be used to prosecute for perjury50.

In the case of El Mann Vs. R51, for income tax purposes it

was mandatory that the accused fill out a questionnaire,

for failure to do so would have been an offence. The

form disclosed certain offences. His advocate objected

50 Evidence Act, Laws of Kenya, Section 128,51 [1969] E.A. 357

to the use of the filled out information the law that

enshrines privilege against self-incrimination. The

matter was taken to a court which pointed to the clarity

and unambiguity of the said provision; the provision

referred to the accused not testifying at his trial and

did not refer to places outside the trial. Therefore,

filling out the questionnaire was not a trial and

therefore not covered under that provision.

ii. Privilege of communications during marriage waived

A wife or husband of a person charged, contrary to the

rule, shall be a competent and compelled witness without

his/ her consent where the accused is charged with

bigamy, or offences under the Sexual Offences Act or

offences or torts involving persons or property of any

child to the marriage.

iii. Legal Profession Privilege waived

As a rule, a lawyer has a duty to represent his client to

the best of his ability. However, he cannot engage in any

unlawful activity under the guise of protecting his

client’s interest, for his first duty and loyalty, is to

the law.

The legal profession privilege therefore is waived if the

client communicates to the advocate his intend to do

impending harm and the advocate reasonably believes that

the client will carry out the said harmful actions52.

Lawyers can disclose information where they have to come

up with a defense against malpractice. They may also

disclose in order to collect fees or as a defense against

harassment

Remedy for breach of the duty of confidentiality

Advocates Act and Rules, Cap 16 (Disciplinary Tribunal)

A complaint against an advocate for professional

misconduct, including breaching the duty of

confidentiality, may be made to the disciplinary tribunal

by any person53.

The disciplinary Tribunal is established by Section 57 of

the Advocates Act.

52 Evidence Act, Cap 80, Laws of Kenya, Section 134(a)and(b),53 Advocates Act, Cap 16, Laws of Kenya, Section 60(1),

After hearing the complaint and the advocate to whom the

same relates, if he wishes to be heard, and considering

the evidence adduced, the Tribunal may order that the

complaint be dismissed or, if of the opinion that a case

of professional misconduct on the part of the advocate

has been made out, the Tribunal may order—

(a) that such advocate be admonished; or

(b)that such advocate be suspended from practice for a

specified period not exceeding five years; or

(c) that the name of such advocate be struck off the

Roll; or

(d) that such advocate do pay a fine not exceeding fifty

thousand shillings;

or such combination of the above orders as the Tribunal

thinks fit.

(e) that such advocate pays to the aggrieved person

compensation or reimbursement not exceeding five million

shillings54.

54 Advocates Act, Cap 16, Laws of Kenya, Section 60(4)

It is however important to note that the determination of

the disciplinary tribunal is deemed equivalent to the

determination of the court, and so any order made has to

be honoured, respected and adhered to as would a court

order.

An advocate who’s aggrieved by an order of the

Disciplinary Tribunal can appeal against that order

within fourteen days of receiving an notice to do so55.

The appeal is made to a court of law.

After considering the evidence taken by the Disciplinary

Tribunal, its report and memorandum of appeal, and having

heard the parties, and after taking any further evidence,

if it thinks fit so to do, the court may—

(a) refer the report back to the Disciplinary Tribunal

with directions for its findings on any specified point;

or

(b) confirm, set aside or vary any order made by the

Tribunal or substitute such an order as it may think fit;

55 Advocates Act, Cap 16, Laws of Kenya, Section 62(1),

and may also make such order as to the payment by any

person of costs, or otherwise in relation to the appeal,

as it may think fit56.

If the advocate is still aggrieved by the decision or

order of the court, he may appeal to the Court of

Appeal57.

With the foregoing knowledge as regards the laws in Kenya

that speak on confidentiality the next chapter will

provide an in depth analysis regarding confidentiality

and legal privilege.

56 Advocates Act, Cap 16, Laws of Kenya, Section 64,57 Advocates Act, Cap 16, Laws of Kenya, Section 67(1)

CHAPTER THREE

DUTY OF CONFIDENTIALITY

THE NATURE, SCOPE, JUSTIFICATION AND CONDITIONS FOR LEGAL

PROFESSIONAL PRIVILEGE AND CONFIDENTIALITY

Legal Professional Privilege

Legal professional privilege is a concept that refers to

“communication between a client and a solicitor that is

immune from any subsequent disclosure to a third party”58.

Legal privilege means that neither the solicitor nor the

client can be compelled to disclose any information

58 Kyalo Mbobu (2011). The Law of Evidence and Practice of Evidence in Kenya. Nairobi: Law Africa

regarding their communication.59 The Evidence Act at

section 134 states that ‘an advocate shall at no any

particular time be allowed to make disclosures of any

communication made to him in the course of and in the

purpose of his employment or any document that has become

part of his possession for the purposes of his

professional employment.60 This disclosure extends to

advice that is rendered by an Advocate to the client

during the duration of the Advocates employment however,

this privilege is not absolute. 61 Moreover non-legal

advice does not fall within the ambits of evidentiary

privilege and may be disclosed in proceedings62.

James Moliterno asserts that privilege is only created

when there is a desire for both the client and the

advocate to indicate or demonstrate that the

communication is privileged.63 This means that privilege

59 Ranchhoodas, R. (1963). The Law of Evidence . 14th ed. Bombay: Law Reporter Office p. 28160 Evidence Act s.13461 Kyalo Mbobu (2011). The Law of Evidence and Practice of Evidence in Kenya. Nairobi: Law Africa62 Alfred Crompton Amusement Machines Ltd v Commissioners of Custom and Excise (No. 2) [1972] All ER 353 (CA)63 Moliterno, J. E. (2010). Professional Responsibility. New York: Aspen Publishers Online Available at : http://www.books.google.co.ke

is not created when the communication is eavesdropped,

the client needs to show that he exercises reasonable

care to avoid his communication from being heard by third

parties, interception of phone calls despite the fact

that courts state that eavesdropper’s testimony is

inadmissible if privilege is asserted64. In situations

where there are multiple clients consult an advocate then

there is a challenge when one of the clients waives the

privilege against the other clients because there is an

absence of desire to maintain confidentiality within the

group consulting them65.

What then are the requirements a client or advocate must

fulfil in asserting that communication or the information

is protected by privilege? In United States v Shoe Machinery

Corporation66 the requirements are that the person is a

client, or a prospective client at time of disclosure,

secondly recipient of the communication is a lawyer,

client is exclusively part of the communication, fourthly

64 Moliterno, J. E. (2010). Professional Responsibility. New York: Aspen Publishers Online Available at : http://www.books.google.co.ke65 Moliterno, J. E. (2010). Professional Responsibility. New York: Aspen Publishers Online Available at : http://www.books.google.co.ke66 89 F.Supp.357 (D. Mass. 1950)

the communication was for purposes of legal advice,

opinion, services and privilege can be claimed or waived

by the client. These requirements may apply as basis for

which courts determine whether communication is protected

by privilege.

The justification for legal privilege was aptly stated in

the case of Grant v Downs67 where the court noted that it

enhances the administration of justice because a client

is induced to retain the services of his solicitor and

can seek advice with full and frank disclosure of any

relevant circumstance to the solicitor68. This is an

entitlement extended to an advocate and a client to

ensure that they can freely prepare for a case as part of

the ingredients that inform a fair trial. Legal

professional privilege extends even after the advocate-

client relationship ceases to exist and can only be

waived by the client according to section 135 of the

Evidence Act. The Law Society of Kenya Digest of

67 [1976] 135 CLR 67468 Grant v Downs [1976] 135 CLR 674

Professional Conduct and Etiquette (2000)69 Rule 20 (b)

(ii) states ‘ the objects and the cardinal rule of

privilege is ensuring that a client can confide

completely without reservation in his advocate and thus

extends to the agents of the advocate’70.

Kyalo Mbobu proffers a two pronged division of legal

professional privilege that is litigation privilege and

legal advice privilege71. Litigation privilege arises

after adversarial proceedings and after litigation

whether it has commenced or is contemplated72. This form

of privilege covers documents produced for the purposes

of litigation where there is a reasonable likelihood of

litigation. In the case of Waugh v British Railway Board73 the

court held that documents cannot be protected by

professional privilege unless the documents were

submitted in anticipation of litigation. Similarly in the

69 Law Society of Kenya Digest of Professional Conduct and Etiquette (2000)70 Law Society of Kenya Digest of Professional Conduct and Etiquette (2000) Rule 20 (b) (ii)71 Kyalo Mbobu (2011). The Law of Evidence and Practice of Evidence in Kenya. Nairobi: Law Africa72 Kyalo Mbobu (2011). The Law of Evidence and Practice of Evidence in Kenya. Nairobi: Law Africa73 [1980] AC 521

case of Belabel v Air India74 the Court of Appeal in upholding

that the documents that were to be discovered were

protected by privilege stated that the documents: drafts,

working papers, attendance notes and memorandum of the

proposed lease were given in anticipation of legal

proceedings.75 This is interpreted to mean that any

privilege to documents possessed by the Advocate belongs

to the client and where a client has no lawful possession

of the documents then legal privilege is diminished.

Rule 20 (b) (i) of the Law Digest for Professional

Conduct and Etiquette states ‘privilege is that of the

client and not the advocate and it may accordingly be

waived by the client and not the advocate’76. The court in

determining whether privilege is to be waived must

consider whether the matter falls within the scope of

privilege. In the American case of United States v Leventhal77

the court held that the disclosure of identities of

clients only reveals that there exists an advocate-client

relationship, a factual matter and is not within the

74 [1988] 2 All ER 24675Belabel v Air India [1988] 2 All ER 24676 Law Society of Kenya Digest of Professional Conduct and Etiquette (2000) Rule 20 (b) (i)77 961 F.2D 936 (11th Cir.1992)

scope of privilege and Leventhal was compelled to reveal

the sources of the payments. This is the position in

common law jurisdiction including Kenya as held in the

English Courts in Anderson v Bank of British Columbia78 that the

privilege to withhold information is that of the client

and the client has the privilege to decide what is to be

disclosed79.

An advocate has no authority to disclose information to

the public even if thus would be in the best interest of

the client80.In the case of Wallace v Canadian Pacific Railway81

the court stated that the vague assertions of transfer of

information that consists of litigation strategies and

assertions of knowledge and risk management from a client

to a solicitor did not constitute confidential

information82.

78 [1876] 2 Ch D. 644 at 46979 Anderson v Bank of British Columbia [1876] 2 Ch. D. 644 at 649 (CA)80 Paciocco D.M. & Stuesser L. (1996) The Law of Evidence. Concord, Ontario: Irwin Law 132-5281 (2011) SKCA 108; (2011) 340 D.L.R 40282 Wallace v Canadian Pacific Railways (2011) SKCA 108; (2011) 340 D.L.R 402

Litigation Privilege

General litigation privilege falls under lawyer-client

privilege despite legal privilege being backed by the

law83. Litigation privilege arises during the course of

trial, which is when an advocate is litigation in a court

he must keep the communications between the client and

him private84. This privilege is more developed in the

American jurisdiction as stated in Hickman v Taylor85 where

people had drowned following an accident and the owner

hired a firm to defend him for possible legal action. The

lawyers went ahead to interview the survivors and the

lawyers to the plaintiff requests summaries of the

interview. In declining to order disclosure the Supreme

Court stated that the materials were covered by

litigation privilege despite those interviewed did not

offer the information on confidential basis and that the

plaintiffs’ lawyer was free to make his own interview.

83 Hutchinson, A. (1996) Legal Ethics and Professional Responsibility. Canada Chapter 784 Wheeler v Le Merchant (1881) 17 Ch D 675 at 681 (CA)85 329 U.S. 495 (1947)

From the American case of Hickman v Taylor litigation

privilege aims at protecting the investigations,

ruminations and adversarial incentives to pursue their

client’s case, as opposed to legal privilege protecting

the advocate client relationship and legal rights of the

parties.

The limitation in interpreting litigation privilege is

when interpreted broadly advocates and clients may tend

to hide relevant facts and information and therefore

courts only apply litigation privilege to documents. The

documents as stated in Waugh v British Railways Board86

where they are made for the purposed of submitting it to

an advocate for advise and use in litigation.

General Duty of Confidentiality

86[1980] A.C. 521

Confidentiality ‘is a set of rules or a promise that

limits the access of places restrictions on

communications between a client and an advocate of a

certain nature’87.It is important that one distinguishes

between confidentiality and privilege. Confidentiality is

a duty imposed on the advocate, while privilege is a

right of non-disclosure that attaches to the information

given thereunder (privileged information/

communication)88. In King Woollen Mills Ltd (Manchester Outfitters) v

Kaplan & Stratton Advocates89 the court affirmed the reasoning of

the court in Rukusen vs Ellis, Munday & Clerk90 where the court

stated that once a solicitor is retained by a client

there is an absolute duty that the information given will

not be disclosed. The information not to be disclosed is

of a confidential nature that is obtained by the advocate

through a retainer and that the advocate must exercise

utmost good faith as long as the retainer lasts and even

after it is terminated91.

87 Adopted from the article Legal Advice Privilege: Loss of "Confidentiality" Kills It!, Malaysian Bar, 200688 Rhode, D. (2006). Legal Ethics in an Adversary System: The Persistent Questions. Hofstra Law Review 34 (2): 641-67289 Civil Appeal No 55 of 199390 (1912) 1 Ch p. 38191 Rakusen v Ellis, Munday & Clarke (1912) 1 Ch p 831

The duty of confidentiality is owed to former clients,

the prospective clients of the advocate and that it

arises even when no fee is charged in order to create a

duty of confidentiality or evidentiary privilege92. In

Republuc v Minister of Finance & Commissioner of Domestic Taxes ex parte

LSK93 Nyamu J in declining to grant request by the

Commissioner of Tax to be given details of Electronic Tax

Register stated that this was in breach of client-

advocate confidentiality. The court allowed the

Commissioners to examine the Register Ledger which would

safeguard the advocate-client confidentiality emphasising

on privileged communication especially letters.

In Three Rivers District Council v Bank of England94 the court held

that legal advice privilege is a measure designed to

protect the confidentiality of the lawyer-client

relationship and it applies to confidential communication

between the lawyer and the client and for the purposes of

92 Moliterno, J. E. (2010). Professional Responsibility. New York: Aspen Publishers Online Available at : http://www.books.google.co.ke p. 78 93 [2006] eKLR NRB HC MISC APP 644 of 200594 (No.5) [2003] QB 1556

seeking of giving advice95. The scope of what forms of

‘communication’ includes the actual communication between

an advocate and a client (phone calls, discussions,

emails, faxes, letters) and extends to evidentiary

documents and communications (file notes and phone

calls). The duty of confidentiality is not only

applicable to information where legal professional

privilege attaches but it extends to the essential facets

of fiduciary duties and even survives where the advocate

client relationship is terminated. Deane J in Baker v

Campbell96 held ‘the principle underlying privilege is that

a person is entitled to seek and obtain legal advice

without apprehension of being prejudiced through any

subsequent disclosure of that particular information97.

The protection available relates to confidential

information.

The American Bar Association (ABA) Model Rule 1 .18 (b)

states ‘a lawyer shall not use or reveal information

95 See Three Rivers District Council v The Bank of England (No.6) [2005] 1 ac 61096 [1990] HCA 6797 Baker v Campbell [1990] HCA 67

gained from a prospective client except as allowed by

Model Rule 9 that is in contemplation to commit a fraud,

crime or compelled by the law’.98 This implies that even

if the prospective client does not become a client then

the duty of confidentiality extends to the client, this

applies to even a former client of the Advocate99.

The essence of the duty of confidentiality is created by

the existence of the advocate client relationship, which

requires a higher degree of confidence. The exceptions to

this duty as contemplated in the case of Parry-Jones v Law

Society100 arise for instance when disclosure is authorised

or when a solicitor must obey the law, or is compelled by

the law, and where the law requires him to disclose the

affairs of his client101. The other situation is where the

client duly authorises his advocate or solicitor to

disclose information. Information not protected by

confidentiality may include information already available

98 ABA Model Rules of Professional Conduct Rule 1.1899 Joy P.A. & McMunigal, K.C. (2014). Client and Prospective Client: What’s the Difference. Washington University on St Louis Legal Studies Research Paper Series. Paper No. 14-08-01100 [1969] 1 Ch 1101 Parry –Jones v Law Society [1969] 1 CH 1

to the public (public domain), disclosure of wills

content to members of the public or where the court

orders information to be made public. However lawyers or

advocates must ensure that if the law requires that the

confidential information be disclosed, then an advocate

must be ‘careful not to disclose more information than is

necessary or required’102.

Acting for Both Parties: conflict of interest and confidentiality

In instances where an advocate intends to act for two or

more parties at the same time, there is a high chance

that this form of relationship may create a conflict of

interest leading to breach of confidentiality and legal

privilege. In general legal practice, the law does not

prohibit a party from acting for two or more clients at

the same time however an advocate must have a clear cut

way of keeping the communications between his clients

confidential.

102 Freedman, M. H. (1969). ‘Solicitor-Client Privilege under the Income Tax Act’ Canadian Business Journal 93

Understanding the risks of breaching the duty of

confidentiality means knowing the consequences of breach

of that duty, what is the consequence of breach of

confidentiality? In the case of Rakusen v Ellis Munday & Clark103

held ‘a solicitor acting for a client in a particular

matter does not entitle the client to restrain the

solicitor acting against him in the same matter’.104 This

means that a solicitor can act against his client in the

same matter, however the danger in this situation is that

where the solicitor has information confidential to his

client the solicitor cannot use that information against

his client as long as there is no risk of disclosure105.

In Prince Jefri Bolkiah v KPMG106 the risk of disclosure when

acting against a client needs to be real and should not

be merely fanciful, theoretical but it needs not be

substantial as established by the House of Lords107.

103 [1912] 1 CH 831104 Rakusen v Ellis Munday & Clark [1912] 1 CH 831105 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222106 [1999] 2 AC 22107 Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222

A dilemma arises when it comes to acting for both

parties, as stated in the case of Prince Jefri Bolkiah v KPMG108

where Lord Millett said:-

“A man cannot without the consent of both clients act for one client

while his partner is acting for another in the opposite interest. His

disqualification has nothing to do with confidentiality of client

information but bases on the inescapable conflict of interest which the

situation presents”109

In Prince Jefri’s the proposal by the courts is that advocates

acting for two clients need to separate their information

from the rest of the advocates in the firm to prevent

free flow of information. This creates a ‘Chinese wall’

within the firm to protect the confidentiality of

client’s information and communication.

The Kenyan jurisprudence on confidential information is

clear when a firm of advocates acts for two clients in

the same matter. In King Woollen Mills Ltd (Manchester Outfitters) v

Kaplan & Stratton Advocates110 , Kaplan & Stratton chose to act

for the Bank despite having acted for both the borrowers108 (a firm) [1999] 2 AC 222109 (a firm) [1999] 2 AC 222110 Civil Appeal No 55 of 1993

and the bank in creating the loan agreement. Muli JA held

‘since the borrowers had shared confidential information

with the firm in confidence, there was doubt as to

whether the bank would consciously use the confidential

information to prejudice the interest of the clients111.

In Uhuru Highway Developers Ltd & Others vs Central Bank of Kenya112 the

court held that there is a strong presumption that since

the Advocates firm had acted for both the borrowers and

the bank, the advocate may use the knowledge or

information to prejudice the borrower’s interests in the

matter.

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.

111 King Woollen Mills Ltd (Manchester Outfitters) v Kaplan & StrattonAdvocates Civil Appeal No 55 of 1993 112 (2003) KLR 62 (CA)

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:

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.113 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 others114 the court

held that a citizen claiming a right to access

information must not only show that the information is

113 See The Constitution of Kenya Art 35(1)(b).114 [2013] eKLR available at www.kenyalaw.org

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.115 In the case of Nelson O Kadison v Advocates Displinary

Commission & another,116 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:

115 See the case of Rose Wangui Mambo & 2 others v Limuru Country GolfClub & others (2013) eKLR. Where the court held that the traditionalvertical application of bill of rights has no place in the newconstitutional dispensation and right can be enforced even againstprivate entities and persons.116 [2013] eKLR.

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 need to be aware that the intended

conduct was unlawful.117 However, ignorance of law is no

117 R. v Campbell [1999] 1 S.C.R. 565 paras. 55–61.

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. Mierzwinski118, 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 the118 [1982] 1 S.C.R. 860.

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.119

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,120 an advocate assisted parties to make a

disposition that was very prejudicial to the bank to

119 [1999] 1 S.C.R. 565 paras. 55–61. 120 [1995] ALL ER 511.

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…”121

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.121 Ibid at 525.

The case however creates a qualification that the

dominant purpose for seeking the legal advice must be

motivated by an existing or imminent litigation.122 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

123for 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 Board124 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 the122 Ibid.123 [1976] 135 C.L.R 674.124 [1980] AC 521.

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 Sood125 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 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 information125 [1973] EA 145.

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 ex-client has brought an action

touching on the instructions issued by the advocate into

issue before court as was in Harich v Stamp126. Also when an

ex-client made allegations or imputations against his

former advocate in testimony as was in R v Dunbar & Logan.127

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

126 (1979), 27 O.R. (2d) 395, 106 D.L.R. (3d) 340, 59 C.C.C. (2d) 87 (Ont. C.A.). 127 (1982), 138 D.L.R. (3d) 221, 68 C.C.C. (2d) 13 at 39-42 (Ont. C.A.)

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.128

Thirdly, whenever a client brings legal proceedings

against a former advocate, a client will be deemed to

have waived the privilege implicitly.129 This was held in

the case of Nelson O Kadison v Advocates Complaints Commission &

another.130 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

128 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> 129 See Kyalo Mbobu, ‘The Law & Practice of Evidence in Kenya, 2011.Pg 164.130 (2013) eKLR.

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).”131

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

131 Ibid.

required in the interest of the public to make

disclosures. Other domains of public interest are

security and public health. In Solosky v. Queen132, 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,133 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

132 [1980] 1 S.C.R. 821. 133 [1999] 1 S.C.R. 455.

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

Jones134. 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.135

This rule has come to be known in Canada as McClure

application since the Court in R. v McClure136 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

134 ibid135 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.). 136 [2001] 1 S.C.R. 445.

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.137

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

137 Paul M. Perer, Privilege Primer, available at http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=11517 <accessed on August 20, 2014>

One has to justify the requirements of privilege

information. The Supreme Court holding in Slavutych v.

Baker138 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.

138 [1976] 1 S.C.R. 254, [1975] 4 W.W.R. 620, 55 D.L.R. (3d) 224.

CHAPTER FOUR

COMPARATIVE ANALYSIS

Common Law Generally

Legal professional privilege at common law is generally

divided into two categories, commonly referred to as the

"limbs" of legal professional privilege, as follows:

advice privilege

litigation privilege.

Advice privilege

Advice privilege attaches to confidential communications

between a legal adviser and client or third party which

are made for the dominant purpose of obtaining or

providing legal advice (AWB v Cole (No.5) (2006) 155 FCR 30,

44 [41]). Advice privilege will also apply if a person

directs or authorizes a third party (as their agent) to

make a communication:

on that person's behalf

to a legal adviser

for the dominant purpose of obtaining legal advice.

Provided the dominant purpose requirement is met,

privilege may also apply to communications where the

third party is not an agent of the client or legal

adviser. For example, where the third party is an expert

whose specialist knowledge is required to ensure the

client obtains accurate legal advice applicable to their

particular circumstances, advice privilege could apply.

However, legal advice privilege will not attach to advice

that is prepared for the dominant purpose of financial,

personal, commercial or public relations matters(Three

Rivers District Council v Governor and Company of the Bank of England

(No.6) [2005] 4 All ER 948, 989) , nor will it cover

policy or administrative advice(Waterford v Commonwealth

(1986) 163 CLR 54, 95).

Litigation privilege

Litigation privilege attaches to confidential

communications between a legal adviser and client made

for the dominant purpose of use in, or in relation to,

litigation.

For litigation privilege to apply, the litigation must

have commenced or been reasonably anticipated at the time

the confidential communication was made.

Litigation will be reasonably anticipated where there is

a ' real prospect of litigation, as distinct from a mere possibility, but it does

not have to be more likely than not  ' (Mitsubishi Electric Pty Ltd v

Victorian WorkCover Authority [2002] 4 VR 332, 341 [19]). A

judgement as to whether litigation is reasonably

anticipated requires an objective view of the

circumstances (Mitsubishi Electric Pty Ltd v Victorian WorkCover

Authority [2002] 4 VR 332, 341 [19]).

For example in practice, when considering document on a

legal file, litigation privilege may apply to the

following types of communications:

advice regarding prospects of success in litigation

advice regarding a particular stage in the

litigation such as an interlocutory

application/injunction

correspondence with witnesses for the purpose of

obtaining evidence to be used in litigation

information that may lead to evidence being obtained

to use in the litigation.

Litigation privilege also extends to third party

communications where they are:

connected with the lawyer-client relationship; and

made for the dominant purpose of use in, or in

relation to, existing or reasonably anticipated

litigation (Trade Practices Commission v Sterling (1979) 36

FLR 244.).

It protects the confidentiality of certain communications

made in connection with giving or obtaining legal advice

or in the provision of legal services, such as

representation in legal proceedings( Esso Australia Resources

Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999)

201 CLR 49).

The protection granted by legal professional privilege

ensures that people are able to seek and obtain legal

advice in the conduct of their affairs as well as legal

assistance in and for the purposes of the conduct of

actual or anticipate litigation, without being concerned

about prejudice they may suffer if those communications

are subsequently disclosed (Baker v Campbell (1983) 153 CLR

52). It also protects 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.

However, without protection the quality of the advice

would suffer as clients would be discouraged from making

full disclosure to their legal representatives. In

Greenough v Gaskell (1833), 1 M & K 98, Lord Brougham stated

that :

The foundation of this rule is not difficult to discover. It is not (as has

sometimes been said) on account of any particular importance which

the law attributes to the business of legal professors, or any particular

disposition to afford them protection ... But 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 skilful

person, or would only dare tell his counsellor half his case".

Common law principles

An example of privileged third party communications which

may attract litigation privilege are communications

exchanged between a legal adviser, or client, and a

potential witness for the dominant purpose of obtaining

evidence for use in litigation (Carbone v National Crime

Authority (1994) 52 FCR 516).

Litigation privilege does not arise if an action is

conducted by a litigant in person (Australian Competition and

Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32

(20 March 2009)).

England and Wales

In England and Wales, the principle of legal professional

privilege has long been recognised by the common law. It

is seen as a fundamental principle of justice, and grants

a protection from disclosing evidence. It is a right that

attaches to the client (not to the lawyer) and so may

only be waived by the client. It is the principal reason

why inspection of documents is refused, and is regarded

as a fundamental principle of justice. It is an exception

to the general cards on the table outlook of the CPR.

Privilege discloses a substantive right to keep

privileged material confidential not only in the context

of litigation, but generally (R (on the application of Morgan

Grenfell & Co.) v Special Comr of Income Tax [2003] 1 AC 563).

Privilege extends beyond a mere evidential rule, and has

been regarded as a fundamental principle of justice.

The client must be sure that what he tells his lawyer in

confidence will never be revealed without his consent.

Legal profession privilege is thus much more than an

ordinary rule of evidence, limited in its application to

the facts of a particular case. It is a fundamental

condition on which the administration of justice as a

whole rests (R v Derby Magistrates' Court, ex p B [1996] AC 487).

In the law of England and Wales, legal professional

privilege is divided into two types: advice privilege,

and litigation privilege, the former category being more

absolutely and broadly-defined than the latter.

Australia

Legal professional privilege in Australia developed from

the English common law privilege.

In the Australian context, the rationales for legal

professional privilege are as follows:

encouraging full disclosure of information by a

client to a lawyer;

promoting compliance with the law by enabling

lawyers to give full and considered advice on a

client's legal obligations;

discouraging litigation and encouraging alternative

dispute resolution;

protection of a client's privacy;

protecting access to justice.

Justice Kirby of the High Court of Australia has

described legal professional privilege as an "important

human right deserving of special protection for that

reason" ('The Daniels Corporation International Pty Ltd v

Australian Competition and Consumer Commission' (2002)

213 CLR 543)

The Australian Law Reform Commission (ALRC) has adopted

the terminology 'client legal privilege', as opposed to

'legal professional privilege', on the basis that the

privilege is held by the client and not the lawyer.

'Client legal privilege' is the terminology used in

Commonwealth and state evidence statutes. However, the

common law privilege remains almost universally described

by courts as being 'legal professional privilege'.

Canada

Solicitor–client privilege was initially a common law

evidentiary principle similar to hearsay, but has since

become recognized as a substantive rule that is

constitutionally protected. This recognition began with R.

v. Solosky (1979) where Justice Dickson, in tracing its

history, regarded it as a "fundamental civil and legal

right" that guaranteed clients a right to privacy in

their communications with their lawyers even outside a

courtroom.

In R. v. McClure [2001] 1 S.C.R. 445, the Court found that

solicitor–client privilege was a principle of fundamental

justice.

In its general sense, Canada has adopted John Wigmore's

definition of solicitor client privilege:

Where legal advice of any kind is sought from a professional legal

adviser in his capacity as such, the communications relating to that

purpose, made in confidence by the client, are at his instance

permanently protected from disclosure by himself or by the legal

adviser, except the protection be waived.

Justice Lamer set out the test for solicitor–client

privilege in Decoteaux v. Mierzwinski

1. The confidentiality of communications between

solicitor and client may be raised in any

circumstances where such communications are likely

to be disclosed without the client's consent.

2. Unless the law provides otherwise, when and to

the extent that the legitimate exercise of a right

would interfere with another person's right to have

his communications with his lawyer kept

confidential, the resulting conflict should be

resolved in favour of protecting the

confidentiality.

3. When the law gives someone the authority to do

something which, in the circumstances of the case,

might interfere with that confidentiality, the

decision to do so and the choice of means of

exercising that authority should be determined with

a view to not interfering with it except to the

extent absolutely necessary in order to achieve the

ends sought by the enabling legislation.

4. Acts providing otherwise in situations under

paragraph 2 and enabling legislation referred to in

paragraph 3 must be interpreted restrictively.

United States

Attorney–client privilege is a legal concept that

protects communications between a client and his or her

attorney and keeps those communications confidential, in

both civil and criminal cases. This privilege encourages

open and honest communication between clients and

attorneys.

In the United States, the elements necessary to establish

the attorney client privilege are:

1. The asserted holder of the privilege is (or sought

to become) a client; and

2. The person to whom the communication was made:

1. is a member of the bar of a court, or his

subordinate, and

2. in connection with this communication, is

acting as an attorney; and

3. The communication was for the purpose of securing

legal advice.

There are a number of exceptions to the privilege in most

jurisdictions, chief among them:

1. the communication was made in the presence of

individuals who were neither attorney nor client, or

was disclosed to such individuals,

2. the communication was made for the purpose of

committing a crime or tort,

3. the client has waived the privilege (for example by

publicly disclosing the communication).

However, not all state courts treat attorney

communications as privileged. For instance, Washington

state law, and the federal courts when applying federal

law, only protects client communications. An attorney's

communication will only be protected as privileged to the

extent it contains or reveals the client's

communications. In contrast, California state law

protects the attorney's confidential communications

regardless of whether they contain, refer to or reveal

the client's communications. In addition, the United

States Supreme Court has ruled that the privilege

generally does not terminate upon the client's death

(Swidler & Berlin v. United States).

CONCLUSION

In analysing the complaint filed by Mr. Waiganjo Mbugua

as to if the advocate has breached the confidentiality/

privilege duty, the Disciplinary Tribunal should be

judicious enough to scrutinise the information allegedly

divulged by advocate Tom Mali. In line with arguments put

forward in the foregoing chapter, the Disciplinary

Tribunal should be able to sagaciously categorize the

allegedly divulged information as one that could be

disclosed, must be disclosed or kept confidential.

REFERENCES

Legislation

The Constitution of Kenya, 2010

The Advocates Act, Cap 16

The Evidence Act Cap 80

Law Society of Kenya Digest of conduct and Etiquette

2000

Evidence Act

ABA Model Rules of Professional Conduct

Law Society of Kenya Digest of Professional Conduct

and Etiquette (2000)

The Proceeds from Crime and Anti Money Laundering

Act No. 9 of 2009.

Kenyan Cases

Charles Ndungu Githuka v Republic Criminal Appeal

No. 595 OF 2010 [2014] eKLR

Mwalimu Kalimu Gamumu & 35 others v Coastline

Safaris Limited & 2 others [2013] eKLR

Oriental Commercial Bank Limited V Central Bank of

Kenya [2012] eKLR

Ahmednasir Abdikadir & Co. Advocates v National Bank

of Kenya Ltd (2007) eKLR

Ritesh Nandlal Pamnani & Another V Dhanwanti

Hitendra Hirani & 2 others[2012] eKLR

Strathmore Research Centre and Consulting Centre V

Paul Maina Gacari [2012]eKLR

King Woolen Mills Ltd –vs- Kaplan & Stratton

Advocates (1990 – 1994) EA 244 

National Bank of Kenya Limited V E. Muriu Kamau &

Another [2009]eKLR

Common Law Cases

Togstad v. Vesely, Otto, Miller & Keefe 291 NW 2d

686

Bristol and West Building Society v Mothew [1998] Ch

1

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964]

AC 465

Alfred Crompton Amusement Machines Ltd v Commissioners of Custom

and Excise (No. 2) [1972] All ER 353 (CA)

Baker v Campbell [1990] HCA 67

Belabel v Air India [1988] 2 All ER 246

Grant v Downs [1976] 135 CLR 674

Hickman v. Taylor, 329 U.S. 495 (1947).

Parry –Jones v Law Society [1969] 1 CH 1

Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222

Rakusen v Ellis Munday & Clark [1912] 1 CH 831

Three Rivers District Council v Bank of England

(No.5) [2003] QB 1556

Three Rivers District Council v The Bank of England

(No.6) [2005] 1 ac 610

United States v. United Shoe Machinery Corp., 89 F.

Supp. 357 (D. Mass. 1950).

United States v. Leventhal, 961 F.2d 936 (11th Cir.

1992)

Wallace v Canadian Pacific Railways (2011) SKCA 108;

(2011) 340 D.L.R 402

Waugh v British Railway Board [1980] AC 521

Wheeler v Le Merchant (1881) 17 Ch D 675 at 681 (CA)

Publications

Common Law Library (2012). Jackson & Powell on Professional

Liability. First Supplement to the 7th edn. London:

Sweet & Maxwell.

Freedman, M. H. (1969). ‘Solicitor-Client Privilege

under the Income Tax Act’ Canadian Business Journal 93

Hutchinson, A. (1996) Legal Ethics and Professional

Responsibility. Canada Chapter 7

Joy P.A. & McMunigal, K.C. (2014). Client and Prosepctive

Client: What’s the Difference. Washington University on St

Louis Legal Studies Research Paper Series. Paper No.

14-08-01

Moliterno, J. E. (2010). Professional

Responsibility. New York: Aspen Publishers Online

Available at : http://www.books.google.co.ke

Kyalo Mbobu (2011). The Law of Evidence and Practice of

Evidence in Kenya. Nairobi: Law Africa

Paciocco D.M. & Stuesser L. (1996) The Law of

Evidence. Concord, Ontario: Irwin Law 132-52

Ranchhoodas, R. (1963). The Law of Evidence . 14th ed.

Bombay: Law Reporter Office p. 281

Rhode, D. (2006). Legal Ethics in an Adversary

System: The Persistent Questions. Hofstra Law Review 34

(2): 641-672

Blacks Law Dictionary, 6th Edition

Blacks Law Dictionary, 8th Edition

Volume 13 Halsbury’s Law of England(4th Ed),

Discovery, Inspection & Interrogatories at Pg 57

Halsburys Laws of England 3rd Edition Vol. 3

paragraph 67

Marvin R. Ventrell, Rights and Duties: An Overview of the.

Attorney-Client Relationship, 26 LOY. U. CHI. L. J. 259

(1995)

Articles, Reports, and journal

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>

Joseph Kihanya, ‘Social Media & Defamation; Freedom

of the Press and the Law in Kenya’, The Law Society of

Kenya Journal Volume 9 2013 NO. 1.