Global Investigations Review - The law and practice of international investigations

Privilege 2016

Last verified on Thursday 9th February 2017

United Arab Emirates

Borys Dackiw and Ghada El Ehwany
Baker McKenzie Habib Al Mulla

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. UAE mainland

    In the UAE, there is no concept of legal privilege as it is understood in common law jurisdictions nor is there protection for “without prejudice” correspondence. Communications between an attorney and client should be treated as confidential, and the benefit of the confidentiality.

    The principle of the confidentiality of communication between attorneys and clients is entrenched in professional codes of conduct and laws governing the legal profession. By their nature these laws and codes bind members of the legal profession and do not apply to or restrict disclosure by clients of information and advice provided by external legal advisers at the client’s request.

    Article 42 of the Federal Advocacy Law No. 23 of 1991 (as amended) stipulates that an attorney is under a duty to maintain the confidentiality of any information entrusted to him by his clients or that came to his or her knowledge in the course of his or her profession and that disclosure is only permitted if such disclosure aims to prevent committing a crime.

    The Federal Code of Ethics issued by virtue of a decree of the Minister of Justice No. 666 of 2015 (the Federal Code of Ethics) states that any information designed to be shared solely with the attorney, either communicated by the client or a third party, must be kept confidential. This duty applies to all information that came to the knowledge of the attorney in the occasion of conducting his profession including providing advisory or litigious services.

    Disclosure is permissible in very limited cases including: (i) the written consent of the client or the written consent of the rightful owner of the confidential information is obtained; (ii) an express court judgement ordered such disclosure is obtained and only to the extent needed by the court; or (iii) if the attorney, his partners or employees are accused of a criminal charge or a civil claim arising from the relationship with the client or a negligence or professional misconduct.

    Dubai International Financial Centre

    Dubai International Financial Centre (DIFC) is a financial free zone in the Emirate of Dubai. The DIFC is exempt from the civil and commercial laws of the UAE and operates largely as a self-regulated common law jurisdiction. However, UAE criminal laws and specific federal regulation, including the regulations on anti-money laundering, apply in the DIFC.

    There is another relatively newly established financial free zone in the Emirate of Abu Dhabi “Abu Dhabi Global Market” that enjoys a comparable legislative autonomy and applies common law.

    For the purposes of this questionnaire, we are only covering the key features of legal privilege in the UAE mainland and DIFC.

    There is a number of provisions in the DIFC laws and regulations that are relevant to the concept of privilege:

    (i) The Code of Conduct of Legal Practitioners in the DIFC Courts imposes a duty on practitioners to keep information communicated to them by their client confidential unless such disclosure is authorised by the client, ordered by the DIFC Court or required by law. This duty continues even after the practitioner has ceased to act for the client.

    (ii) The glossary of the DIFC Courts includes a definition of “privilege” and it is the right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognised by law.

    (iii) Moreover, "privileged communication" is defined in the set of regulations of the Dubai Financial Supervisory Authority (DFSA), the regulator of financial services in DIFC, as “a privilege arising from the provision of professional legal advice and any other like privilege properly applicable at law to the communication in question, but does not include a general duty of confidentiality”.

    In the ordinary course, “privileged communication” would be protected against compulsory disclosure, except in circumstances where the DFSA, as the regulator of banks and financial institutions licensed in the DIFC, requests the disclosure of such information and documents in the context of an audit or investigation of a regulated entity.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. UAE mainland

    Any information of a confidential nature communicated by the client to the attorney in the occasion of the provision of legal services must be kept in confidence. There is no distinction between legal and non-legal advice.

    DIFC

    As per the Code of Conduct for Legal Practitioners in the DIFC Court, any information communicated by the client to the attorney must be kept in confidence. There is no distinction between legal and non-legal advice.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. UAE mainland

    There are no specific rules governing litigation privilege. A party to a dispute is under no obligation to disclose all documentation in its possession and is only required to file evidence beneficial to its case.

    DIFC

    There is no legislation that specifically deals with litigation privilege in the DIFC.

    However, in the Code of Conduct of Legal Practitioners in the DIFC Courts, practitioners shall not disclose to the DIFC Courts prior to judgment, the content of any settlement offers or settlement negotiations, regardless of whether these have expressly been stated to be “Without Prejudice”, unless the communication containing the settlement offer or negotiations has been expressly marked or otherwise identified as sent on an open basis.

    Generally, it is likely that the DIFC Courts would rely on English legal principles of privilege when determining if an item of evidence is privileged, unless the DIFC Courts develop their own set of precedent on that issue. In this regard, in summary, litigation privilege exists in evidence: (i) which is confidential; (ii) which is produced in circumstances where litigation is either in progress or where there is a reasonable prospect of litigation at the time the document was created; and (iii) for which the principle purpose at the time of creation of the evidence of its author, or of the person or body under whose direction it was produced, must be to use it in order to obtain legal advice, or to assist in litigation. 

  7. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  8. UAE mainland

    There is no distinction between the different types of documents protected by the general duty of keeping all confidential information in confidence. The attorney may be potentially liable in the event of failure to preserve the confidentiality of any document prepared in anticipation of an attorney–client communication that contain any of the confidential information received from a client or a third party. 

    DIFC

    There is no distinction between the different types of documents protected by the general duty of keeping all confidential information in confidence. The attorney may be potentially liable in the event of failure to preserve the confidentiality of any document prepared in anticipation of an attorney–client communication that contain any of the confidential information received from a client.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. The attorney must ensure that all his/her partners and employees are bound by the confidentiality obligations. 

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. In the Federal Code of Ethics, any information is privileged if communicated by the client in the context of the client–attorney relationship. Any confidential information communicated to an attorney by a third party with proprietary rights, which is meant to be confidential are also protected.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. In the UAE mainland, there is a number of exceptions and caveats to the privilege such as permitted disclosure by virtue of a court order.

    In DIFC, DFSA, as a regulator, may order the attorney to disclose privileged information.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. The UAE Penal Code (a Federal law) applies in the DIFC and in the UAE Mainland. Article 379 of the UAE Penal Code prohibits the disclosure of confidential information by any person who by virtue of his or her profession is “entrusted with a secret”. Although the UAE Penal Code does not explicitly define the term “secret”, a secret has been interpreted by courts to include anything that would be considered by its nature or due to the circumstances to be confidential and would include proprietary commercial and business information that is not in the public domain.

    Although the elements of the crime of disclosure of confidential information are quite specific (requiring evidence of criminal intent and personal gain or benefit to a third party that may be difficult to prove in the context of a regulatory investigation), a breach of article 379 of the UAE Penal Code nonetheless may result in imprisonment and the payment of fines. Moreover, criminal liability may extend both to the legal entities as well as individuals who authorised the disclosure of confidential information, in circumstances where the other elements of the crime can be proved. 

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In the UAE mainland, the privilege applies only to advocates. In-house counsel are not subject to privilege rules. In-house counsels are regarded as employees and are subject to the customary duty of keeping the secrets of the employers.

    In DIFC, there is no legislation that specifically deals with privilege extending to in-house counsels. Accordingly, it is likely that the DIFC courts would rely on English legal principles of privilege when determining extension to in-house counsel.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Any communication between the external attorney and the employee of a corporate client, acting as agents or representatives of the client, should be regarded as privileged.

  21. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  22. There are no rules or regulations that address extending the privilege between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. In the UAE Mainland, the Federal Code of Ethics apply to (i) all advocates practising in the UAE, (ii) all legal consultants practising in the UAE, (iii) all law firms licensed in the UAE, (iv) all foreign advocated and legal consultants temporarily authorised to provide services in the UAE; and (v) the representatives of parties in the arbitration centres licensed in the UAE.

    In DIFC, the duty is set out in the Code of Conduct of Legal Practitioners in the DIFC Courts, licensed by the DIFC Courts. 

  25. 13.Is there an analogous privilege extended to non-lawyer professionals?
  26. There are no rules or regulations that address extending the privilege to non-lawyer professionals.

  27. 14.Does the privilege apply to communications with potential clients?
  28. UAE mainland

    The Federal Code of Ethics extends the privilege to communication between the attorney and “clients” and between the attorney and “third party” who desire to share only the information with the attorney, the reference to “third party: could capture third party potential clients who entrust the attorney with information necessary to assess a potential representation. 

    DIFC

    The Code of Conduct of Legal Practitioners in the DIFC Courts imposes a duty on practitioners to keep information communicated to them by their client. There is no reference to a general duty of confidentiality. 

    Moreover, article 37 of the DIFC Law of Obligations stipulates that a person has a duty not to misuse specific information which he has received from another (a confidant), directly or via an intermediary, and which can reasonably be regarded as confidential, where he knows or ought to know that the information is confidential. This prohibition on breach of confidence may be used to extend the privilege to communication with potential client to the extent such communication include confidential information.

    We also note that the definition of “privilege” in the glossary of the DIFC Courts is the right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognised by law. This is a very broad recognition of privileges that may be provided for under different laws and regulations. 

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. The client holds the privilege.

  31. 16.Can the privilege be waived? Who may waive it?
  32. A privilege may be waived by the client written consent. 

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. Yes, waiver may be given to part of the communication required for legitimate purpose.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. Sharing any privilege information must be approved in writing by the respective parties.

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. In the UAE, it is not uncommon to include a confidentiality provision in an engagement letter or enter into a non-disclosure agreement; upon the request of the client. 

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. These rules are found in laws and regulations.

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. The privilege is characterised as a substantive right.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. There are no differences between the application of the privilege in the criminal, civil, regulatory, or investigatory context.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The rules regarding privilege differ between the UAE Mainland and the financial free zones. Moreover, we note that the regulator of the profession in the respective Emirate may issue additional code of ethics applicable to the legal profession. For instance, the Dubai Legal Affairs Department, the regulator of the legal profession in the Emirate of Dubai, has circulated a draft code of ethics for consultation. 

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. There is a committee within the Ministry of Justice in charge of supervising the implementation of the Federal Advocacy Law. At an Emirate level, the Dubai Legal Affairs Department is entrusted as well of regulating the profession and has a special committee that oversees any complaints filed against legal consultants and advocates.

    The disciplinary sanctions that an attorney may face range from warnings to disqualification.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. Appeals against the disciplinary sanctions may be filed before the competent court. Moreover, courts have jurisdiction to consider (i) civil claims for the damages incurred as a result of the breach of confidentiality obligation, and (ii) criminal claims on the basis of the breach of the confidentiality obligations under the UAE Penal Code. 

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. Privilege may be invoked by the parties in different forms. There is no prescribed method for invoking privilege by the parties. In the UAE Mainland, there is a Civil Procedures Code, a Criminal Procedures Code and a Law of Evidence that would apply to invoking any defences or claims in the judiciary system.

    In DIFC, the DIFC Court Law No. 10 of 2014 and Rules of the Dubai International Financial Centre Courts 2014 apply to the court proceedings. Privilege is recognised in these Rules as a valid ground for withholding production of documents, where it is available under the legal or ethical rules determined by the DIFC Courts to be applicable.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. As a general rule, the party claiming the breach of any obligation will bear the burden of the proof.

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. A court order is required for disclosure of privileged information. 

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. Generally, parties entering into contracts in the UAE are entitled to opt for a foreign law, to govern the relationship, except for certain types of matters such as real rights (ie, matters pertaining to a property located in the UAE), employment contracts, or registered commercial agency, and contracts concluded with UAE government entities, for public order considerations.

    This choice will be upheld by local courts and to the extent the foreign law provisions do not contradict Islamic Shari’a, public order or morals of the UAE.

    However, the provisions regulating legal privileges are prescribed in rules governing the legal profession and we do not believe that parties may opt out of these rules and apply different foreign laws. 

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. UAE mainland

    Under the Civil Transactions Code, the agency relationship extinguishes by the death of the principle (in this case, the client). However, the duty of confidentiality of an attorney continues and does not terminate by the conclusion of the attorney–client relationship. There is no time limitation on claims based on the breach of this duty.

    DIFC

    There are no express provisions regarding the termination of the privilege upon the death of either the attorney or the client.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. See response to question 30.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. UAE mainland

    The disclosure of confidential information entrusted by the client to the attorney is permitted if such disclosure aims to prevent committing a crime.

    DIFC

    Disclosure of confidential information by legal practitioners is generally permitted if required by law (eg, the Penal Code imposes a reporting obligation upon the knowledge of the occurrence of a crime).

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. There are no provisions in the legislation with regard to the termination of privilege if the attorney makes an inadvertent disclosure. In any case, the disclosure will be an ethical breach and the attorney will be liable to indemnify the client for the harm caused as a result of this breach. The attorney may attempt to retrieve the privileged information and correct the error to reduce the impact of the breach. 

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. If the inclusion of the third party or the subsequent forwarding of the communication is made by the client, benefiting of the privilege, this may be regarded as an implicit waiver of the privilege. However, it is always recommended to avoid including any third parties even if the inclusion of the third party was initiated by the client in the chain at any point in time, unless expressly authorised to do so by the client.

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.Is there an analogous privilege extended to non-lawyer professionals?
  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?