Lex Mundi Global Attorney-Client Privilege Guide |
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Malaysia |
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(Asia Pacific)
Firm
Skrine
Contributors
Jocelyn Lim |
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| Is the ACP recognized in your jurisdiction? | Yes. Section 126 of Malaysia’s Evidence Act 1950 (“the Evidence Act”) sets out the Malaysian equivalent of ACP which protects 3 categories of materials, namely:
Under the Evidence Act, a solicitor shall not be permitted at any time to disclose professional communications that fall under section 126. This obligation of legal privilege continues even after the solicitor’s employment has ceased and remains absolute until waived by the client. Communications made by the agent of a client to a solicitor will also attract the protection of privilege. It may also be pertinent to note that under Malaysian jurisprudence, payments made by a client to a solicitor are not communications within the protection of section 126 and therefore do not attract such privilege. |
| 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... | Not applicable. ACP is recognized in the Malaysian jurisdiction. See the answer above. |
| 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? | No, privilege under section 126 of the Evidence Act applies equally in civil and criminal proceedings. No. Government, regulatory and enforcement authorities cannot require disclosure of communications or documents protected by privilege under section 126. Even if a valid court order or search warrant leads to the discovery of communications or documents protected by privilege which is later sought to be relied on in court as evidence, a party asserting privilege may apply to the court for such evidence to be expunged. |
| 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.) | There is presently no standardized test in determining who within a corporation is considered the client such as to attract privilege. Where the client is an artificial entity, such as a corporation, the courts recognize that it would, therefore, have to function through its principal officials such as its directors, top management personnel or professional advisers. “Clients” can also be extended to include persons connected to such principal officials who would have to act on or be entitled to be informed of the relevant communications. |
| 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? | In-house counsel are not active members of the Malaysian Bar and therefore do not fall within the ambit of section 126 of the Evidence Act which confers the protection of privilege. Additionally, there are no reported cases in Malaysia to date which establish that the common law doctrine of litigation privilege (See Answer to II(A) and (B) below) extends to in-house counsel. Until such time that the scope of litigation privilege in relation to in-house counsel is discussed and ruled on by the courts, it is recommended for corporations to err on the side of caution and proceed on the basis that no privilege shall apply to in-house counsel. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not relevant as Malaysia is a common-law jurisdiction. In any event, see answers to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" below. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not relevant as Malaysia is a common-law jurisdiction. In any event, see answers to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" below. |
| Is the common interest doctrine recognized in your jurisdiction? | No |
| 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? | No, the common law doctrine of champerty and maintenance, which is defined in Malaysia as the action of “assisting a party in a suit in which one is not naturally interested with a view to be receiving a share of the disputed property if the suit succeeds”, renders void any agreement found to be champertous. As at the date of this article, there are no exceptions in place such as to allow non-champertous litigation funding in Malaysia. It, therefore, remains to be seen whether or not an attempt at litigation funding, which falls short of being found champertous, would be deemed an enforceable agreement by the Malaysian courts. It is worth noting that the Malaysian Federal Court recently delivered judgment last year which confirms that champerty is no longer a criminal offense in Malaysia. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No. There are no reported cases within the Malaysian jurisdiction on litigation funding. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The proviso in section 126 of the Evidence Act expressly states that privilege does not extend to communications made in furtherance of any illegal purpose, dealing, transaction or fact observed by a solicitor in the course of his employment showing that a crime or fraud has been committed since the commencement of his or her employment. Malaysian cases have also decided that in instances where a client lodges a document with the sole purpose of obtaining the protection of privilege, privilege shall not be extended to protect such document from production. |
| 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)?) | Yes. Although the wording of section 126 expressly refers to a form of privilege equivalent to ACP, it makes no specific reference to litigation privilege. However, the broad scope of section 126 of the Evidence Act has resulted in less reliance on the traditional common law doctrine of litigation privilege. In the past 5 years, the Malaysian courts have taken conflicting positions as to whether the lack of express reference to litigation privilege in Malaysian legislation implies that the common law position has effectively been displaced as a result and can no longer be relied on. As it stands, in the most recent decision handed down in 2017, the Malaysian court had held that litigation privilege does in fact continue to exist alongside legal advice privilege contained within the Evidence Act. Unfortunately, some uncertainty will continue to exist unless and until absolute clarity is obtained by means of legislation being introduced by the Malaysian legislature or the Malaysian Federal Court, the apex court in the jurisdiction, makes a ruling on this point. |
| What are the elements of the protection in your jurisdiction? | The common law doctrine of litigation privilege extends to cover all confidential communication made or disclosed for the dominant purpose of litigation. Although there are still some elements of uncertainty regarding the extent of protection offered by this common law privilege, the Malaysian courts have held that, aside from communications between solicitor and client, the doctrine extends to communications between a client and a third party for the purposes of submission to a legal adviser, either for obtaining litigation advice or for the conduct of litigation. |
| Does your jurisdiction recognize an accountant-client privilege? | No. There are no special legal provisions that apply in respect of accountant-client relationships. However, the doctrine of litigation privilege "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" may apply provided that the communications are made with the dominant purpose of litigation. |
| Does your jurisdiction recognize a mediation privilege? | Under section 15 of the Mediation Act 2012, no person shall disclose any communication made in mediation unless the disclosure is:
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| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, to an extent. It is settled law in Malaysia that “without prejudice” communications, both oral or written, are inadmissible in evidence of the negotiations attempted. In order for such protection to apply:
Although it is highly recommended that all such communications be expressly stipulated or marked as “without prejudice” for the avoidance of all doubt that the contents are privileged, failure to do so does not rob a party from this protection. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. Section 126 of Malaysia’s Evidence Act 1950 (“the Evidence Act”) sets out the Malaysian equivalent of ACP which protects 3 categories of materials, namely:
- communications exchanged with the advocate or solicitor by or on behalf of the client regardless of whether these are made for the purpose of seeking legal or non-legal advice;
- any documents which have either been physically handed over to the advocate or solicitor or the contents of which have been brought to the advocate's or solicitor's attention "in the course and for the purpose of his/her professional employment"; and
- legal advice given by the advocate or solicitor to his/her client.
Under the Evidence Act, a solicitor shall not be permitted at any time to disclose professional communications that fall under section 126. This obligation of legal privilege continues even after the solicitor’s employment has ceased and remains absolute until waived by the client. Communications made by the agent of a client to a solicitor will also attract the protection of privilege. It may also be pertinent to note that under Malaysian jurisprudence, payments made by a client to a solicitor are not communications within the protection of section 126 and therefore do not attract such privilege.
Not applicable. ACP is recognized in the Malaysian jurisdiction. See the answer above.
No, privilege under section 126 of the Evidence Act applies equally in civil and criminal proceedings.
No. Government, regulatory and enforcement authorities cannot require disclosure of communications or documents protected by privilege under section 126. Even if a valid court order or search warrant leads to the discovery of communications or documents protected by privilege which is later sought to be relied on in court as evidence, a party asserting privilege may apply to the court for such evidence to be expunged.
There is presently no standardized test in determining who within a corporation is considered the client such as to attract privilege. Where the client is an artificial entity, such as a corporation, the courts recognize that it would, therefore, have to function through its principal officials such as its directors, top management personnel or professional advisers. “Clients” can also be extended to include persons connected to such principal officials who would have to act on or be entitled to be informed of the relevant communications.
In-house counsel are not active members of the Malaysian Bar and therefore do not fall within the ambit of section 126 of the Evidence Act which confers the protection of privilege.
Additionally, there are no reported cases in Malaysia to date which establish that the common law doctrine of litigation privilege (See Answer to II(A) and (B) below) extends to in-house counsel. Until such time that the scope of litigation privilege in relation to in-house counsel is discussed and ruled on by the courts, it is recommended for corporations to err on the side of caution and proceed on the basis that no privilege shall apply to in-house counsel.
Not relevant as Malaysia is a common-law jurisdiction. In any event, see answers to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" below.
Not relevant as Malaysia is a common-law jurisdiction. In any event, see answers to "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" below.
No
N/A
N/A
No, the common law doctrine of champerty and maintenance, which is defined in Malaysia as the action of “assisting a party in a suit in which one is not naturally interested with a view to be receiving a share of the disputed property if the suit succeeds”, renders void any agreement found to be champertous.
As at the date of this article, there are no exceptions in place such as to allow non-champertous litigation funding in Malaysia. It, therefore, remains to be seen whether or not an attempt at litigation funding, which falls short of being found champertous, would be deemed an enforceable agreement by the Malaysian courts.
It is worth noting that the Malaysian Federal Court recently delivered judgment last year which confirms that champerty is no longer a criminal offense in Malaysia.
No. There are no reported cases within the Malaysian jurisdiction on litigation funding.
Yes
The proviso in section 126 of the Evidence Act expressly states that privilege does not extend to communications made in furtherance of any illegal purpose, dealing, transaction or fact observed by a solicitor in the course of his employment showing that a crime or fraud has been committed since the commencement of his or her employment. Malaysian cases have also decided that in instances where a client lodges a document with the sole purpose of obtaining the protection of privilege, privilege shall not be extended to protect such document from production.
Yes. Although the wording of section 126 expressly refers to a form of privilege equivalent to ACP, it makes no specific reference to litigation privilege. However, the broad scope of section 126 of the Evidence Act has resulted in less reliance on the traditional common law doctrine of litigation privilege.
In the past 5 years, the Malaysian courts have taken conflicting positions as to whether the lack of express reference to litigation privilege in Malaysian legislation implies that the common law position has effectively been displaced as a result and can no longer be relied on. As it stands, in the most recent decision handed down in 2017, the Malaysian court had held that litigation privilege does in fact continue to exist alongside legal advice privilege contained within the Evidence Act.
Unfortunately, some uncertainty will continue to exist unless and until absolute clarity is obtained by means of legislation being introduced by the Malaysian legislature or the Malaysian Federal Court, the apex court in the jurisdiction, makes a ruling on this point.
The common law doctrine of litigation privilege extends to cover all confidential communication made or disclosed for the dominant purpose of litigation.
Although there are still some elements of uncertainty regarding the extent of protection offered by this common law privilege, the Malaysian courts have held that, aside from communications between solicitor and client, the doctrine extends to communications between a client and a third party for the purposes of submission to a legal adviser, either for obtaining litigation advice or for the conduct of litigation.
No. There are no special legal provisions that apply in respect of accountant-client relationships. However, the doctrine of litigation privilege "Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?" and "What are the elements of the protection in your jurisdiction?" may apply provided that the communications are made with the dominant purpose of litigation.
Under section 15 of the Mediation Act 2012, no person shall disclose any communication made in mediation unless the disclosure is:
- Made with the consent of the parties;
- Made with the consent of the person who gives the mediation communication;
- Required under the Mediation Act or for the purpose of any civil or criminal proceedings under any law; or
- Required under any other written law for the purposes of implementation or enforcement of a settlement agreement.
Yes, to an extent. It is settled law in Malaysia that “without prejudice” communications, both oral or written, are inadmissible in evidence of the negotiations attempted. In order for such protection to apply:
- There must be a dispute between two or more persons or entities that lead them to negotiate with one another; and
- The negotiation communications must be such that it contains terms that would finally lead to the settlement of the dispute.
Although it is highly recommended that all such communications be expressly stipulated or marked as “without prejudice” for the avoidance of all doubt that the contents are privileged, failure to do so does not rob a party from this protection.
However, where negotiations result in a settlement or agreement, such communications can be relied on as evidence of the terms of the settlement or agreement where it has not been incorporated in another document.