Privilege: United Arab Emirates

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

United Arab Emirates

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

United Arab Emirates

In onshore proceedings, there is no concept of legal professional privilege, but all communications between a client and their attorney are protected by confidentiality belonging to the client. In any event, there is no obligation to disclose documents to the opponent or the court.

In DIFC and ADGM proceedings, non-legal communications (such as those that are only commercial in nature) would not be protected to any greater extent than under English law.

3. Is a distinction made between legal advice related to litigation and other legal advice?

United Arab Emirates

In DIFC and ADGM proceedings, communications containing legal advice (related to litigation or otherwise) would be protected to the same extent as under English law.

4. What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney–client communication? Does it cover documents prepared during an attorney-led internal investigation?

United Arab Emirates

As noted above, in onshore proceedings, all communications between a client and their attorney are protected by confidentiality belonging to the client, and in any event, there is no obligation to disclose documents to the opponent or the court. Therefore, no issue arises as to the status of documents prepared by a client or attorney in the context of anticipated litigation.

In DIFC or ADGM Court proceedings, documents will be protected by privilege to the same extent as English law, namely that protection will apply to documents that are:

• confidential in nature;
• produced at a time when litigation is either in progress or is a reasonable prospect; and
• the dominant purpose of production was to use it to either obtain legal advice or to assist in litigation.

5. To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?

United Arab Emirates

In onshore proceedings, the issue does not arise because, as noted above, the parties are not obliged to disclose documents that do not support their case. The Code of Ethics also prohibits attorneys (and their entire firm) from disclosing information or documents obtained during the course of carrying out their professional duties, unless the client consents.

In DIFC and ADGM Court proceedings, the position will be the same as English law, which would generally provide protection where the client is privy to the communication and attracts either legal advice or litigation privilege, or, if the client is not privy to the communication, if it meets the criteria of litigation privilege.

6. Is the underlying information privileged if it can be obtained from a non-privileged source?

United Arab Emirates

In onshore proceedings, information that either does not have or has lost the characteristics of confidentiality would not attract any protection and can be used by an opponent.

In DIFC and ADGM Court proceedings, the position is similar to onshore UAE  in that privilege would ordinarily not be capable of attaching to information in the public domain. However, the courts would apply principles of English law in relation to any question of whether a party is deemed to have waived privilege in respect of that information, which may require a more complex analysis if the information has only been revealed to a more limited class of persons.

7. Are there any notable exceptions or caveats to the privilege?

United Arab Emirates

As noted above, there is no concept of privilege under UAE law and/or in the context of onshore proceedings. Rather, information is protected by confidentiality and by professional conduct rules applicable to attorneys. The most notable exceptions are that an attorney may disclose confidential information where it would prevent a crime from being committed, in proceedings against the attorney for malpractice, or pursuant to a court order compelling such disclosure.

In DIFC and ADGM Court proceedings, attorneys may only disclose information where authorised by the client, pursuant to a court order, or otherwise where required by law. In practice, the court would not order disclosure of privileged communications unless the party is deemed to no longer be entitled to assert such privilege due to fraud or otherwise illegal conduct.

Otherwise, documents and information may be subject to compulsion pursuant to powers of the Public Prosecutor under federal criminal law and procedure that applies onshore and offshore.

8. Are there laws unrelated to privilege that may protect certain communications between attorney and client?

United Arab Emirates

Aside from UAE law and professional practice rules that protect confidential information (rather than a doctrine of privilege per se), there are no protections arising from laws unrelated to privilege or confidentiality. However, it should be noted that unauthorised disclosure of confidential information is also a criminal offence where the person acquired the information via their profession or occupation or if it involves a benefit being derived by the discloser or a third party. The federal criminal laws of the UAE apply in the entirety of the state, including in financial free zones.

9. To what extent does the privilege extend to in-house counsel?

United Arab Emirates

United Arab Emirates

In onshore proceedings, the position is the same as described in the items above in that no issue will arise concerning any distinction between in-house or external counsel, as a party is not obliged to disclose any documents that do not support its case.

DIFC and ADGM

Neither jurisdiction has any specific rules on this subject. Rather, as above, the courts would afford the same protection as under English law, which involves certain important limitations on the scope of advice privilege, such as the requirement that the advice is legal and not purely commercial in nature, and that not all recipients of the in-house counsel’s advice will be deemed to be the “client” of the in house lawyer.

10. Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances? And who possesses the privilege - the corporate client, the employee or both?

United Arab Emirates

All information communicated between the external attorney and a client’s employee, acting in the course of business as an agent or representative of the client, is deemed to be confidential communication, and protected as such. In that context, the confidentiality belongs to the employer. However, if the attorney is acting for the employee in their personal capacity, the confidentiality is the employee’s alone.

The position will be the same in DIFC and ADGM, but on the basis of traditional principles of legal professional privilege.

11. Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

United Arab Emirates

United Arab Emirates

There are no specific rules or regulations that govern communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel. The position is the same as question 10. Additionally, the employee will be subject to obligations of confidentiality under UAE Employment Law and will be subject to federal criminal laws.

DIFC and ADGM

As above, such communications will be afforded the same protection as under English law. Such communications would likely be protected under litigation privilege.

12. Must the attorney be qualified to practise in your country to invoke the privilege?

United Arab Emirates

United Arab Emirates

As above, this issue does not arise in onshore proceedings as a party is under no obligation to disclose documents that do not support their case.

DIFC and ADGM

The protection will be the same as afforded under English law. In this context, English law affords protection where the external attorney is a member of the legal profession, which is effectively practising solicitors and barristers. It is expected that the DIFC and ADGM Courts would apply this principle in a modified form that is appropriate to reflect the legal profession in the UAE.

13. Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter? What measures in such circumstances should an attorney take to protect those communications?

United Arab Emirates

United Arab Emirates

Where a non-lawyer third party, performing a role in their profession, obtains confidential information belonging to their client, the attorney would have a general duty to treat any information that is communicated as confidential.

DIFC and ADGM

The protection will be the same as afforded under English law. Such communications are likely to attract litigation privilege but not advice privilege. It would be prudent for the attorney to ensure that the third party includes both the attorney and the client in the communications, as such communications are more likely to attract protection.

14. Does the privilege apply to communications with potential clients?

United Arab Emirates

United Arab Emirates

As above, the communications will be regarded as confidential in the hands of the client. This will be the case irrespective of whether there has been any formal written engagement of the attorney’s services. Professional conduct rules also prohibit unauthorised disclosure.

DIFC and ADGM

Protection is likely to be afforded on the basis of legal professional privilege, even if no formal engagement terms have been agreed with the potential client.

15. Does the attorney or the client hold the privilege? Who has rights under the privilege?

United Arab Emirates

United Arab Emirates

Under UAE law, confidence in the information or documents belongs to the client.

DIFC and ADGM

In accordance with English law, privilege belongs to the client.

16. Can the privilege be waived? Who may waive it?

United Arab Emirates

United Arab Emirates

Confidence may be lost under UAE law if the client voluntarily discloses information to third parties (including where the client allows the attorney to do so) in circumstances that are deemed inconsistent with the continued assertion of the confidential nature of that information.

DIFC and ADGM

The position will be the same as English law. Privilege may only be waived by the client. Waiver may be express or implied.

17. Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?

United Arab Emirates

United Arab Emirates

Under UAE law, waiver of confidence in relation to a certain communication would not necessarily amount to a waiver in respect of other communications. Rather, the onshore courts would consider the substance of the underlying information waived by the client in determining the status of other communications. The onshore courts would take a relatively narrow approach to determining the scope of any alleged waiver.

DIFC and ADGM

The position will be the same as English law, which is generally concerned with the substance of the underlying subject matter waived. Accordingly, parties should exercise caution in exercising any right of waiver in certain communications where they intend to maintain privilege in respect of other communications that concern the same or similar subject matter.

18. If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?

United Arab Emirates

The position will be the same as English law in respect of common interest privilege. As such, disclosure would require consent of the co-defendant, which privilege is owned jointly.

19. Is it common for attorneys and clients to agree to a confidentiality provision in a contract?

United Arab Emirates

It is common and usual practice to have confidentiality provisions in an engagement letter or have parties enter into non-disclosure agreements when requested by the client. However, attorneys are subject to those obligations under the laws governing professional conduct as well as federal criminal law.

20. Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?

United Arab Emirates

United Arab Emirates

As above, there are no legal rules regarding privilege. However, the laws protecting confidentiality (in onshore UAE) are based in statute.

DIFC and ADGM

The legal basis of the rules governing privilege are statute, per the court rules, and by the express statutory adoption of the common law of England and Wales (in the case of the ADGM).

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

United Arab Emirates

United Arab Emirates

Protection of confidentiality is characterised as a substantive right.

DIFC and ADGM

The courts appear to have recognised legal professional privilege both as substantive right of English law that cannot be curtailed except in very limited circumstances such as fraud and illegal conduct, as well as a procedural right for litigants in both jurisdictions.

22. Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context.

United Arab Emirates

23. Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?

United Arab Emirates

United Arab Emirates

There is no distinction in respect of rights and obligations concerning confidential information in all onshore jurisdictions (ie, across the various Emirates). Further, while regulation of the legal profession is conducted separately within each emirate of the UAE, there is essentially no distinction in relation to the obligations of attorneys to maintain client confidentiality.

DIFC and ADGM

As noted above, these jurisdictions essentially provide the same protection as each other in relation to attorney-client communications, which reflects English law.

However, it should be noted that the ADGM expressly adopts (pursuant to the Application of English Law Regulations 2015) the common law of England (including the principles and rules of equity), as it stands from time to time (subject to certain modifications and exceptions), whereas the DIFC merely adopts English law as part of a cascade provision for the purposes of determining the applicable law for claims (article 8(2) of the Law on the Application of Civil and Commercial Laws). In other words, DIFC statute does not expressly adopt the law of privilege under English common law.

24. Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?

United Arab Emirates

The DIFC Court, through the DIFC Registrar, the Chief Justice or any nominee of the Chief Justice, monitors breaches of the DIFC Code of Conduct, and has power to impose sanctions that include:

• private or public warnings;
• payment of a fine (limited to US$15,000 for individuals and US$50,000  for firms);
• suspension from the Register of Practitioners for up to three years; and
• removal from the Register of Practitioners.

ADGM

Article 10 of the ADGM Rules of Conduct empowers the ADGM Court may sanction an attorney who has knowingly and intentionally breached any provision of said rules by making an order under Rule 203 of the ADGM Court Procedure Rules.

25. What sanctions do courts impose for violating the attorney–client privilege?

United Arab Emirates

United Arab Emirates

If attorney–client confidentiality is breached, the criminal court has jurisdiction to consider sanctions in respect of both civil and criminal claims. Pursuant to article 3(c) of the Code of Ethics, an attorney shall provide compensation for any damages caused to anybody due to their failure to comply with their confidentiality obligations.

Breaches of confidence are also a criminal offence under article 432 of the Penal Code. Penalties of fine and/or imprisonment apply.

DIFC

The DIFC Court, through the DIFC Registrar, the Chief Justice or any nominee of the Chief Justice, monitors breaches of the DIFC Code of Conduct, and may impose sanctions that include:

• private or public warnings;
• payment of a fine (limited to US$15,000 for individuals and US$50,000 for firms);
• suspension from the Register of Practitioners for up to three years; and
• removal from the Register of Practitioners.

Article 10 of the ADGM Rules of Conduct provides that the court may sanction an attorney who has knowingly and intentionally breached any provisions of said rules by making an order under Rule 203 of the ADGM Court Procedure Rules.

26. How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?

United Arab Emirates

United Arab Emirates

In onshore proceedings, the issue rarely arises as the party to litigation is entitled to choose which documents to submit in support of their case and there is no obligation to produce unfavourable documents. Oral witness evidence is also rarely used in onshore proceedings. However, a witness would be entitled to decline to answer a question that would require disclosure of the contents of communications with their attorney.

DIFC and ADGM

Parties would ordinarily invoke legal professional privilege at the time of disclosure during the proceedings, by informing their opponent and the court if they have declined to produce documents on the basis of an exercise of privilege. Otherwise, a party may exercise such a right at any time, and a witness giving oral evidence would be entitled to invoke privilege on the witness stand.

27. In disputes relating to privilege, who typically bears the burden of proof?

United Arab Emirates

In onshore proceedings, such a dispute would rarely arise, as a party would ordinarily submit only documents that support their own case. However, a party seeking to preclude their opponent from relying on a document on the basis of confidentiality would bear the onus of establishing that the document remains confidential and/or reliance on that document is prohibited by law.

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?

United Arab Emirates

United Arab Emirates

As noted above, there is no compulsory discovery procedure in civil proceedings. However, UAE law does not protect confidentiality in the context of law enforcement exercising powers of compulsion in criminal investigations or proceedings (eg, search warrants). There is no distinction between documents held by the client or attorney as the powers of compulsion in the criminal context apply to any persons or place.

DIFC and ADGM

There is no distinction between documents held by the client and documents held by the attorney, as any documents in the possession of the attorney would typically be within the control of the client.

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?

United Arab Emirates

United Arab Emirates

Under UAE law, parties are free to opt for foreign law to govern the contractual relationship. This is with the exception of commercial matters dealing with:

• property situated in the UAE;
• employment contracts;
• registered commercial agency; and
• contracts with UAE government entities.

UAE civil procedure rules also provide that such a choice should be upheld, provided that the foreign law provisions are not in conflict UAE Law, Islamic Shari’a principles, public order or the morals of the UAE.

However, in practice, the UAE courts rarely apply foreign law, as it requires parties to adduce evidence of the foreign law in codified, documentary form. It is not practicable to do so if the choice of foreign law is a common law jurisdiction.

Irrespective, there is rarely any such issue arising in onshore proceedings because communications that would be treated in other jurisdictions as privileged are simply not produced by that party and there is no discovery procedure in civil litigation.

DIFC and ADGM

Both jurisdictions would generally uphold the parties’ choice of law, although this will not exclude the application of statutes or regulations enacted in the jurisdiction that are not capable of being contracted-out of. As noted above, DIFC statute also contains a waterfall provision for determining applicable law. Where there is no express choice of law, the Court will apply the law of the jurisdiction with the closest connection to the matter, and failing which, the laws of England and Wales.

The DIFC Courts have previously recognised both without prejudice privilege and legal professional privilege as being protected, without reference to choices of law rules or underlying laws governing the claims. As noted above, ADGM also expressly adopts English common law as applicable in that jurisdiction.

30. Does the privilege terminate on the death of either the attorney or the client?

United Arab Emirates

Under UAE law, confidence in attorney-client communications is not terminated upon death of the client. Further, article 3(c) of the Code of Ethics confirms that the attorney’s duty of confidentiality continues after the termination of the attorney–client relationship.

As the DIFC or ADGM apply English law of privilege, death of either the client or attorney will not terminate privilege.

31. Does the privilege terminate on the conclusion of the attorney–client relationship?

United Arab Emirates

Privilege and/or confidence does not terminate on the conclusion of the attorney–client relationship in either onshore or offshore UAE.

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

United Arab Emirates

As noted above, the duty of confidentiality is to be upheld unless such a disclosure is required to prevent a crime from being committed.

In DIFC and ADGM, per English law, the iniquity principle will apply, which would disentitle the client to rely on privilege to further a crime or perpetuate a fraud.

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?

United Arab Emirates

34. Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?

United Arab Emirates

United Arab Emirates

Under UAE law, it is unlikely that inclusion of a third-party communication or forwarding it to a third party would be regarded as any waiver of attorney-client confidentiality. In any event, the opponent would not be entitled to compel disclosure of the information. The third party may also be subject to their own independent obligations of confidentiality.

DIFC and ADGM

As noted above, the position will be the same as English law. The court would consider whether the distribution to the third party constitutes a waiver of privilege at common law.