Legal Professional Privilege, Foreign Lawyers and Foreign In-house Lawyers

"Solicitor-client privilege exists between a foreign lawyer and his client to the same extent as the privilege exists between a solicitor and his client." (Legal Practitioners Ordinance (Cap. 159), s. 39A(2)).

In the recent case of PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 2437 (Comm), the English High Court held that, as matter of English common law, legal advice privilege (for example, as between a solicitor and client) extended to communications with foreign lawyers: (i) whether or not they are in-house (for example, employees of a company or an organization); and (ii) the English courts will not enquire into how foreign lawyers are regulated or what standards they are subject to under their local laws. These issues are a matter for determination applying English common law.

That legal advice privilege extends to foreign lawyers, in-house lawyers and foreign in-house lawyers should not be controversial. Many will also welcome the English courts' clarification that, as a matter of common law and given the policy justifications for legal advice privilege, the courts do not need to enquire how foreign lawyers are regulated under their local laws. The common law looks at the substance (rather than the form) of the communication and the function (rather than the status) of the relationship between lawyers and their clients.

Therefore, if a legal representative is giving legal advice (a term that is widely construed) or receiving instructions from or on behalf of a client (as properly construed) then those communications are protected by legal advice privilege. It does not matter whether the legal representative is a solicitor, barrister, foreign lawyer or in-house lawyer, provided that they are acting in a professional capacity as a legal representative and giving legal advice.

The judgment in PJSC Tatneft should reflect the common law position in Hong Kong. There is already the statutory protection afforded to communications between foreign lawyers and their clients, pursuant to s. 39A(2) of the Legal Practitioners Ordinance (Cap. 159 – see above). The policy reasons that underpin the judgment are equally applicable in Hong Kong – a common law jurisdiction in which foreign lawyers are registered pursuant to a professional regime, governed by the Legal Practitioners Ordinance and relevant regulations. While foreign lawyers cannot advise on matters of Hong Kong law they can and do advise on matters of international law and the laws of their own jurisdictions.

There are also approximately 1,600 registered foreign lawyers (from over thirty different jurisdictions) in Hong Kong and approximately a quarter of members of the Law Society of Hong Kong are employed in-house. These foreign lawyers, in-house lawyers and foreign in-house lawyers advise their clients (private or in-house) as much as locally qualified lawyers and the policy justifications for legal advice privilege apply to all of them – particularly, in the international business community that is Hong Kong SAR.

It is, perhaps, a good time for all lawyers to brush-up on their understanding of the principles that underpin legal professional privilege, including the inbuilt provisions in the Implementation Rules for Article 43 of the National Security Law. Readers may also recall the Law Society of Hong Kong's "Preliminary Observations" on the National Security Law (11 June 2020, at para. 10):

"We add that nothing in the Legislation should interfere with communications protected by legal professional privilege. Legal professional privilege is safeguarded pursuant to the Basic Law and is a fundamental common law right of all legal persons, which is not subject to any competing policy".

The headline points are that legal professional privilege is a fundamental right and the judgment in PJSC Tatneft emphatically confirms that: (i) "legal advice privilege extends to communications with all foreign lawyers regardless of their 'particular national standards, regulations, or rules with regard to privilege'" (para. 49 of the judgment, citing Lord Neuberger in Re Prudential Plc [2013] UKSC 1); and (ii) in this context, "the courts will not look at the regulations governing, and training of, the foreign lawyer" (para. 54 of the judgment).

In short, one should have confidence that the courts will recognise a foreign lawyer and an in-house lawyer when they see one and uphold the fundamental nature of legal professional privilege.

– Warren Ganesh, Senior Consultant, RPC

 

Jurisdictions: 

Senior Consultant, RPC