The Supreme Court Rules,1988 of Sri Lanka (hereinafter the Supreme Court Rules) (Conduct of and Etiquette for Attorneys- at- Law) recognizes the concept of ‘confidentiality in respect of communication exchanged between an Attorney- at- Law and a client in Rules 31-38. The Evidence Ordinance No. 14 of 1895 of Sri Lanka (as amended) (hereinafter referred to as the Evidence Ordinance) also deals with the concept of professional communication between an Attorney and a Client under section 126 (1) and section 127 of the Ordinance. Rule 31 of the Supreme Court Rules specifies inter alia that all information regardless of them being oral or documentary, obtained by an Attorney- at- Law in any matter concerning the client’s business and affairs shall be held in strict confidence. Such duty of protecting the confidentiality of the client extends indefinitely irrespective of whether such Attorney- at- Law has ceased to represent and provide legal advice to the client or whether the client has deceased.¹ The said obligation to protect the information provided by the client in confidence also extends to the partners, associates, or employees working under the said Attorney-at-Law. ²Accordingly, the Attorney- at- Law must take active measures to protect such information obtained in confidence even after his relationship with such partners, associates or employees has ceased to exist. However, the Rules also recognize several exceptions to the concept of confidentiality discussed above. Such exceptions include inter alia;

• Where the client or his legal representative upon the death of the client has expressly or impliedly authorized such disclosure of information in writing³
• In an event where the Attorney- at- Law is required to defend himself, his associates or employees against any allegation of misconduct or malpractice made by the client ⁴
• Where such disclosure of the information is required to prevent the commission of any crime or fraud⁵
• In an event where there is a joint retainer or where the client shares a joint interest with others⁶ Similarly, section 126 (1) of the Evidence Ordinance specifies that no Advocate, Proctor, or Notary shall be allowed to disclose any communication, state the contents or conditions of any documents or disclose any advice given by him to his client during the course and for the purposes of his employment. However, such protection from disclosure is not granted to any communication made in furtherance of any illegal purpose⁷, any fact to be observed by the Advocate, Proctor or Notary as to the commission of any crime or fraud regardless of being notified by the client or not. ⁸ The said provisions of section 126 also apply to interpreters and the clerks or servants of the Advocates, Proctors and Notaries⁹

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² Supreme Court Rules 1988 of Sri Lanka, Rule 34.

³ Supreme Court Rules 1988 of Sri Lanka, Rule. 32.

⁴ Supreme Court Rules 1988 of Sri Lanka, Rule 38 (1).

⁵ Supreme Court Rules 1988 of Sri Lanka, Rule 38 (2).

⁶ Supreme Court Rules 1988 of Sri Lanka, Rule 38 (3).

⁷ Evidence Ordinance No. 14 of 1895 (as amended), S. 126 (1) (a).

⁸ Evidence Ordinance No. 14 of 1895 (as amended), S. 126 (1) (b).
⁹ Evidence Ordinance No. 14 of 1895 (as amended), S. 127.

As explained above, Rules 31-38 of the Supreme Court Rules recognize the concept of confidentiality in respect of communication between an Attorney- at- Law and a client. Similarly, section 126 (1) and section 127 of the Evidence Ordinance recognize that professional communications between an Attorney- at- Law and a client are privileged. please refer to our answer to question 1 above, for more details.

No, Rule 2 of the Supreme Court Rules discussed above, makes no distinction between civil or criminal proceedings and states that the Rules are applicable to all Attorneys- at- Law enrolled in the Supreme Court of Sri Lanka irrespective of their practicing area. Similarly, Section 2 of the Evidence Ordinance specifies that the Ordinance is applicable to all judicial proceedings, both civil and criminal with the only exception being proceedings before a court-martial and an arbitrator.

As explained in our answer to question 2 above, Supreme Court Rules and the Evidence ordinance provide an exception to the concept of confidentiality in communications exchanged between an Attorney-at-Law and a client where such communication is made in furtherance of an illegal purpose¹¹ or where disclosure of such communication is necessary to prevent the commission of any crime or fraud.¹²

Accordingly, government authorities of Sri Lanka may require disclosure of confidential information between an Attorney-at-Law and a client to prevent the commission of any crime or if such communication was made in furtherance of an illegal purpose.

Furthermore, under the Prevention of Money Laundering Act No. 5 of 200613 and Financial Reporting Act No. 6 of 2006¹⁴ of Sri Lanka, Attorneys- at- Law may be required by the Financial Intelligence Unit of Sri Lanka to disclose privileged communication exchanged between his client if such communication was made for the commission or for furthering the commission of any illegal or unlawful activity.

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¹¹ Evidence Ordinance No. 14 of 1895 (as amended), S. 126 (1) (a).
¹² Supreme Court rules 1988 of Sri Lanka, Rule 38 (2).
¹³ Prevention of Money Laundering Act No. 5 of 2006, S. 13 (2)(c).
¹⁴ Financial Reporting Act No. 6 of 2006, s. 13 (2) (c).

Sri Lanka does not apply a particular test to determine who within a corporation is a client for the application of confidentiality rules in respect of communications between an Attorney-at-Law and a client. While the ultimate responsibility of acts done in the name of a corporation would generally rest with the Board of Directors, the Attorney-Client Confidentiality Rules described as aforesaid apply to all communications exchanged between an Attorney- at- Law and an employee of the corporate providing instructions on its behalf, irrespective of the rank held by such employee within the corporate. In general, it is worth noting that employees/ representatives providing instructions on behalf of the company would be specified in documentation such as terms of engagement/retainer documentation.

Section 2 of the Supreme Court Rules specifies that the said Rules (including those pertaining to confidentiality of communication between an Attorney-at-Law and a client) apply to all Attorneys- at- Law enrolled in the Supreme Court of Sri Lanka.
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In Sri Lanka, a distinction is also not made between in-house counsels and external counsels in the application of the Confidentiality Rules. Accordingly, the said Rules bind all Attorneys-at-Law (irrespective of whether they are in-house counsels or external counsels).

Please refer to our answer to question B (2) above.

Not applicable.

The term common interest doctrine is not expressly used nor given express statutory recognition in Sri Lanka. However, Attorneys-at-Law may disclose privileged communication exchanged between him and his client to third parties with a common interest, provided his client has given written permission to this effect.

Written permission would be mandatory in this situation as Rule 32 of the Supreme Court Rules specifies inter alia that an Attorney-at-Law may disclose such information acquired by him from or on behalf of his client if it is expressly or impliedly authorized by his client in writing.

Similarly, section 126(1) of the Evidence Ordinance specifies inter alia that no Advocate, Proctor or Notary shall be permitted to disclose any communication made to him in the course and for the purpose of his employment, unless with the express consent, authorization from his client.

Moreover, it is also worth noting that section 38 (3) of the Supreme Court Rules provides an exception to the confidentiality Rules and specifies that an Attorney-at-Law may disclose communication exchanged between his client to members of a joint retainer or those sharing a joint interest with the client.

Please refer to our answer to question 1 above, particularly the requirements for written permission to be obtained by the client as specified under Rule 32 of the Supreme Court Rules and section 126 (1) of the Evidence Ordinance.

As explained above, the Confidentiality Rules in respect of communications between an Attorney-at-Law and a client, provide an exception of obtaining the written permission of the client, which is also generally considered good practice.

Generally, in Sri Lanka, litigation is funded by the litigant’s own funds and details of funding arrangements are not made public. There are no regulations concerning third-party funding in the country to date. Under the Legal Aid Commission Law No. 27 of 1978, litigants whose monthly income is less than Rs. 15,000/- are provided litigation services, without a charge in respect of land, divorce, maintenance, domestic violence, rent board matters, accident compensation claims, money recovery claims, etc. However, large commercial disputes do not come under the purview of such legal aid services.

Certain Insurance companies in Sri Lanka also provide litigants with insurance services subject to the terms and conditions of such policy. Such insurance facility may be used by the litigants against third-party liability in litigation proceedings.

Section 126 (1) of the Evidence Ordinance and section 31 of the Supreme Court Rules as explained above, expressly state that all communication, conditions of documents and correspondence exchanged between an Attorney-at-Law and client are privileged. However, there appear to be no reported Sri Lankan cases, expressly dealing with the issue of privilege in communications between litigation funders.

Both the Supreme Court Rules (Rule 38 (2)) and the Evidence Ordinance (section 126 (1) (a) and (b)) require Attorneys-at-Law to disclose communication made in furtherance of any illegal purpose and such communication necessary to prevent the commission of any crime or fraud.

Please also see our comments on section 13 (2) (c) of the Prevention of Money Laundering Act and section 13 (2) (c) Financial Reporting Act of Sri Lanka, in answer to question 3 above.

As set out above, please refer to section 126 (1) (a) and (b) of the Evidence Ordinance, Rule 38 (2) of the Supreme Court Rules, section 13 (2) (c) of the Prevention of Money Laundering Act and section 13 (2) (c) of the Financial Reporting Act of Sri Lanka.

The term work product doctrine is not expressly used nor given express statutory recognition in Sri Lanka Generally, documents and information prepared in respect of a pre-trial and trial are only considered public once they are filed in court subject to them being made publicly available prior to that, in the circumstances set out by the aforesaid exceptions.

As explained above, section 126 (1) of the Evidence Ordinance and Rule 31 of the Supreme Court Rules specify that Attorneys-at-Law are not permitted to disclose any communication, contents or conditions of any documents and any oral or documentary information received by him from or on behalf of his clients.

This would apply in respect of documents prepared in respect of pre-trials and trials subject to the exceptions specified above.

Confidentiality obligations of Chartered Accountants are regulated by the Code of Ethics issued by the Institute of Chartered Accountants of Sri Lanka. The said Code identifies ‘confidentiality’ as one of the five fundamental pillars which an Accountant is required to comply with within the discharge of his duties.

Rule 114. 1 of the Code deals with the obligation of confidentiality of Accountants and states inter alia that a Professional Accountant is required to maintain the confidentiality of the information disclosed by a prospective client or an employing organization.¹⁵ Exemptions to the above rule are set out in rule 114.1 A1 which include inter alia situations where disclosure is required by law (ie. Production of documents or other provisions of evidence in the course of legal proceedings, disclosure to the appropriate public authorities of infringements of the law that comes into light), where there is a professional duty to disclose in situations such as to comply with quality reviews, to respond to any investigation by a professional regulatory body and where disclosure is permitted by the law and authorized by the client or the employing organization.

There appear to be no reported judgments that specifically touch on the area of accountant-client privilege.

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¹⁵ The Institute of Chartered Accountants of Sri Lanka, Code of Ethics 2020, Rule 114. 1 (c).

Mediation privilege is referred to in several statutes regulating mediation in Sri Lanka.

For instance, the Mediation (Special Categories of Disputes) Act, No. 21 of 2003, specifically places a duty on the Mediation Board and the parties to mediation to hold all evidence and documents submitted or any of the matters discussed during mediation sessions, in confidence. (section 11 (e) and 12 (b)).

Similarly, the Commercial Mediation Center of Sri Lanka Act No. 44 of 2000 (as amended) places a duty of confidentiality on every party to a dispute and every mediator, in respect of documents submitted and any other matters revealed or discussed during the conduct of mediation sessions. (section 3(c)).

Furthermore, as specified in section 14 (2) of the Mediation Boards Act, No. 72 of 1988 (as amended), certificate of non-settlement issued under the Mediation Boards Act is generally the only document required to be submitted to the court for subsequent court action and no reference is made to the disclosure of any further documentation submitted during mediation under the said Mediation Boards Act 72 of 1988 (as amended).

While not expressly defined as privileged, settlement negotiations in Sri Lanka are generally considered as non-binding and correspondence/documentation are usually exchanged between parties on a ‘without prejudice basis. Therefore, documents and communications pertaining to such negotiations cannot generally be produced in court given that they may not reflect the exact legal position of the parties at a given time.