Lex Mundi Global Attorney-Client Privilege Guide |
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Egypt |
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| (Africa) Firm Shalakany Law Office Updated 10 Feb 2020 | |
| Is the ACP recognized in your jurisdiction? | Attorney-client privilege is a fundamental principle of the Law Governing the Legal Profession. According to Article 79 of the said law, an attorney is prohibited from disclosing any privileged information received from his/her client, unless he/she is requested to do so by the client in order to protect the client’s interests before a court of law. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | The answer to the first part of the question is that the Law Governing the Legal Profession does not provide for any such distinction. Thus, no distinction is made in applying the ACT in civil versus criminal proceedings. With regard to disclosure, lawyers may be requested to disclose relevant information as appropriate in the context of an ongoing or future crime (felony or misdemeanor) being or to be committed by a client (Article 65 of the Law Governing the Legal Profession). The law is broad in its use of the words “may be requested”. Thus, it could be argued that any disclosure requests could be made by government authorities in general. However, in the context of criminal matters within which the exception to the ACP is legislatively provided, disclosure requests are only envisaged to be made either by the Public Prosecution or a competent criminal court. It should be noted that, in practice, the application of the exception provided for in Article 65 of the Law Governing the Legal Profession is very rare to none. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | In the corporate context, the lawyer’s obligation/duty is towards the company itself as a juridical person, and not towards employees of a company, individuals who manage the company or those who sit on its Board of Directors. Therefore, a lawyer cannot breach attorney/client privilege unless authorized explicitly to do so by the concerned company’s legal representative. As juridical persons cannot act except through persons, it is the legal representative of a company that is considered when determining whether any information was divulged in breach of the ACP. Thus, if the person occupying the ‘legal representative’ position within a company is replaced by another, a lawyer who handles work for the juridical person (i.e., the company) remains bound by the ACP vis-à-vis the juridical person, but not the natural person who was replaced. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | There are no separate rules that apply to in-house counsel. Thus, the previous answer applies. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes. Under Egyptian Law, it is prohibited for a lawyer (whether in-house counsel or in a private law firm) to provide information regarding any lawsuit that a lawyer handles whether this information is in favor of or against his/her client . |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in-house counsel are allowed to register at the Bar and to become active members thereof. |
| Is the common interest doctrine recognized in your jurisdiction? | No, it is not. |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Under Egyptian law, there is no concept of private funders that sponsor lawsuits raised before the Egyptian Courts. However, if a party cannot pay the court’s fees and the attorney’s fees, that party may submit an application requesting the competent court to grant him/her judicial assistance by waiving his/her obligation to pay court fees. Although not common, since litigation funding is not regulated and not expressly prohibited, it can be said that it is, in theory, permitted. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No, for the reasons mentioned above. |
| Is the crime-fraud exception recognized in your jurisdiction? | In general, the ACP does not extend to cover information concerning a crime (whether a felony or misdemeanor) being committed, or to be committed, by a client. In other words, the ACP does not extend to cover ongoing or future crimes. While people are not obliged by law to report what they know about issues of a criminal nature, they can be found liable and considered accomplices if it is proven that they aided, supported and/or encouraged another person(s) to commit a crime. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | This matter is regulated by Article 65 of the Law Governing the Legal Profession. In 2012, the Court of Cassation rendered its ruling confirming, inter alia, the general rule regarding the ACP (i.e., that a lawyer cannot divulge any information that he/she has become aware of in the context of providing legal services unless authorized by the client to do so) and acknowledging the legislative exception to the general rule (i.e., that a lawyer is not bound by the ACP with respect to knowledge of crimes that are being committed or planned to be committed in the future). In other words, the Court of Cassation confirmed that, where crimes (whether felonies or misdemeanors) are concerned, a lawyer is not bound by the ACP and, thus, does not need authorization from the concerned client to divulge relevant information. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | There are no rules or provisions that address this particular point in Egyptian law. However, the following articles might be considered relevant to this point: As per Article 65 of the Law Governing the Legal Profession, a lawyer must abstain from submitting testimony on evidence and information obtained as a result of his/her work if the client so requests unless the crime exception applies. Furthermore, Article 70 states that an attorney must not make statements on pending cases in which he/she is involved, and must not publish any material that may influence the progress of these cases. Lastly, Article 79 of the same law emphasizes that an attorney is prohibited from disclosing any privileged information received from his/her client, unless he/she is requested to do so by the client in order to protect his/her interests before a court of law. |
| What are the elements of the protection in your jurisdiction? | Please see our response to the above. |
| Does your jurisdiction recognize an accountant-client privilege? | We are not aware of any legal provision that grants a privilege to accountants. In practice, accountants can be called as expert witnesses and witnesses of fact before courts. |
| Does your jurisdiction recognize a mediation privilege? | Mediation is not regulated by law in Egypt. Thus, the answer would depend on the mediation rules agreed upon by the parties and whether such rules provide for any such privilege. |
| Does your jurisdiction recognize a settlement negotiation privilege? | No, Egyptian law does not recognize a settlement negotiation privilege. As such, reliance on ‘without prejudice’ letters and correspondence is not recommended as it is not certain whether or not Egyptian courts would acknowledge the ‘without prejudice’ qualification. |
Lex Mundi Global Attorney-Client Privilege Guide
Attorney-client privilege is a fundamental principle of the Law Governing the Legal Profession. According to Article 79 of the said law, an attorney is prohibited from disclosing any privileged information received from his/her client, unless he/she is requested to do so by the client in order to protect the client’s interests before a court of law.
N/A
The answer to the first part of the question is that the Law Governing the Legal Profession does not provide for any such distinction. Thus, no distinction is made in applying the ACT in civil versus criminal proceedings. With regard to disclosure, lawyers may be requested to disclose relevant information as appropriate in the context of an ongoing or future crime (felony or misdemeanor) being or to be committed by a client (Article 65 of the Law Governing the Legal Profession). The law is broad in its use of the words “may be requested”. Thus, it could be argued that any disclosure requests could be made by government authorities in general. However, in the context of criminal matters within which the exception to the ACP is legislatively provided, disclosure requests are only envisaged to be made either by the Public Prosecution or a competent criminal court. It should be noted that, in practice, the application of the exception provided for in Article 65 of the Law Governing the Legal Profession is very rare to none.
In the corporate context, the lawyer’s obligation/duty is towards the company itself as a juridical person, and not towards employees of a company, individuals who manage the company or those who sit on its Board of Directors. Therefore, a lawyer cannot breach attorney/client privilege unless authorized explicitly to do so by the concerned company’s legal representative. As juridical persons cannot act except through persons, it is the legal representative of a company that is considered when determining whether any information was divulged in breach of the ACP. Thus, if the person occupying the ‘legal representative’ position within a company is replaced by another, a lawyer who handles work for the juridical person (i.e., the company) remains bound by the ACP vis-à-vis the juridical person, but not the natural person who was replaced.
There are no separate rules that apply to in-house counsel. Thus, the previous answer applies.
Yes. Under Egyptian Law, it is prohibited for a lawyer (whether in-house counsel or in a private law firm) to provide information regarding any lawsuit that a lawyer handles whether this information is in favor of or against his/her client .
Yes, in-house counsel are allowed to register at the Bar and to become active members thereof.
No, it is not.
N/A
N/A
Under Egyptian law, there is no concept of private funders that sponsor lawsuits raised before the Egyptian Courts. However, if a party cannot pay the court’s fees and the attorney’s fees, that party may submit an application requesting the competent court to grant him/her judicial assistance by waiving his/her obligation to pay court fees. Although not common, since litigation funding is not regulated and not expressly prohibited, it can be said that it is, in theory, permitted.
No, for the reasons mentioned above.
In general, the ACP does not extend to cover information concerning a crime (whether a felony or misdemeanor) being committed, or to be committed, by a client. In other words, the ACP does not extend to cover ongoing or future crimes. While people are not obliged by law to report what they know about issues of a criminal nature, they can be found liable and considered accomplices if it is proven that they aided, supported and/or encouraged another person(s) to commit a crime.
This matter is regulated by Article 65 of the Law Governing the Legal Profession. In 2012, the Court of Cassation rendered its ruling confirming, inter alia, the general rule regarding the ACP (i.e., that a lawyer cannot divulge any information that he/she has become aware of in the context of providing legal services unless authorized by the client to do so) and acknowledging the legislative exception to the general rule (i.e., that a lawyer is not bound by the ACP with respect to knowledge of crimes that are being committed or planned to be committed in the future). In other words, the Court of Cassation confirmed that, where crimes (whether felonies or misdemeanors) are concerned, a lawyer is not bound by the ACP and, thus, does not need authorization from the concerned client to divulge relevant information.
There are no rules or provisions that address this particular point in Egyptian law. However, the following articles might be considered relevant to this point: As per Article 65 of the Law Governing the Legal Profession, a lawyer must abstain from submitting testimony on evidence and information obtained as a result of his/her work if the client so requests unless the crime exception applies. Furthermore, Article 70 states that an attorney must not make statements on pending cases in which he/she is involved, and must not publish any material that may influence the progress of these cases. Lastly, Article 79 of the same law emphasizes that an attorney is prohibited from disclosing any privileged information received from his/her client, unless he/she is requested to do so by the client in order to protect his/her interests before a court of law.
Please see our response to the above.
We are not aware of any legal provision that grants a privilege to accountants. In practice, accountants can be called as expert witnesses and witnesses of fact before courts.
Mediation is not regulated by law in Egypt. Thus, the answer would depend on the mediation rules agreed upon by the parties and whether such rules provide for any such privilege.
No, Egyptian law does not recognize a settlement negotiation privilege. As such, reliance on ‘without prejudice’ letters and correspondence is not recommended as it is not certain whether or not Egyptian courts would acknowledge the ‘without prejudice’ qualification.