Confidentiality, professional secrecy and legal privilege under Maltese law

ARTICLE

09 Sep 2021

This article tackles the concepts of client-attorney privilege, confidentiality and professional secrecy, and essentially answers the question: can you really tell your lawyer where the bodies are buried?

The movie industry has been exploiting the concepts of client-attorney privilege, confidentiality and professional secrecy with great abandon for decades. There is a library of movies in which lawyers are often portrayed as quasi-accomplices in their clients’ crimes, blatantly abusing of client-attorney privilege in order to protect themselves and their clients from the long arm of the law.

While these movies make for great entertainment by grossly exaggerating, even distorting, the lengths to which an upstanding lawyer will go to in his/her clients’ interests, they are based on concepts which are common in most jurisdictions, namely professional secrecy, legal privilege and confidentiality. This common thread probably explains why they capture viewers’ imagination around the world.

The Maltese Code of Organization and Civil Procedure clearly prohibits an advocate from being questioned on circumstances stated by the client in professional confidence, without the client’s consent.

In parallel, the Maltese Criminal Code defines legal privilege through a comprehensive definition of ‘items subject to legal privilege’, as:

  • any communication between a professional legal advisor and the client or any person representing him/her; and
  • any document or record enclosed with or referred to in such communication and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.

The terms ‘professional secret’ and ‘secret’ are defined in Article 2(3) of the Professional Secrecy Act as information communicated in writing, transmission of documents, electronic data, by signs or negation, that fall under any of these categories:

  1. Information classified as a secret under a specific provision of any law;
  2. Information which is described as secret by the person communicating the information to a person, who by reason of his calling, profession or office, becomes the depository of a secret confided in him; and
  3. Information which has reasonably to be considered as secret in view of the circumstances in which the information has been communicated and received, the nature of the information and the calling, profession or office of the person receiving the information and of the person giving the information, wherever applicable.

Besides being bound by professional secrecy, a lawyer is required to keep confidential the client’s affairs and must further ensure that his or her staff follow suit, in line with the Code of Ethics and Conduct for Advocates, which all warranted lawyers in Malta must abide by.

In brief, the difference between legal privilege and professional secrecy (or confidentiality) essentially lies in the level of protection afforded to the client making confidential disclosures to his lawyer. While the Professional Secrecy Act allows for a range of permitted disclosures, the same cannot be said with respect to legal privilege.

No Magistrate, Court of criminal jurisdiction or competent law enforcement or regulatory authority may question an advocate on circumstances as may have been stated by a client in professional confidence without the client’s consent. In other words, unlike professional secrecy, a Court may not waive legal privilege. Herein lies the power and importance of client-attorney privilege.

In recent years we have seen client-attorney privilege being somewhat watered down with respect to tax evasion in particular and money-laundering offences in general.

When a lawyer is “a subject person carrying out relevant activity” (such as when setting up a company for a client or giving tax advice or acting as company secretary or assisting with the sale or purchase of immovable property or business entities) he/she has a duty to report suspicious transactions involving the client to the Financial Intelligence Analysis Unit (FIAU) in accordance with the Prevention of Money Laundering Act and the Prevention of Money Laundering and Funding of Terrorism Regulations. Moreover, the lawyer acting as “a subject person carrying out relevant activity” cannot tip off the client about having reported him to the FIAU, as tipping off in such instances is a crime punishable with a fine (multa) and/or imprisonment of up to two years.

It is only lawyers who receive or obtain information on money laundering from their client in the course of determining the legal position of their client, or while carrying out their duty to defend or represent him or her in judicial proceedings, including advice on instituting or avoiding proceedings (whether such information is received or obtained before, during or after such proceedings) who are exempt from reporting their client to the FIAU.

The current state of play and level of certainty will definitely be disrupted if Bill number 217, entitled “Legal Profession (Reform) Amendment Bill” is passed in Parliament. It proposes that legal professionals without a warrant would be able to give legal advice. Apart from creating a new disparity in the legal profession, it is not clear whether this new ‘species’ of legal professionals will be bound by client-attorney privilege, or how their clients will benefit from this protection, if at all.

This article was first published in Times of Malta.