UNIT 4

PRIVILEGE AND CONFIDENCE OF A CLIENT

The principle of privilege and confidentiality is one of the most important aspects of the legal profession, forming the foundation of trust between a lawyer and their client. It ensures that a client can freely share information with their lawyer without fear that such information will be disclosed to third parties. This principle is enshrined in the rules of professional conduct (RPC) and is recognized by both statute and case law in Nigeria.

CONFIDENTIALITY UNDER THE RULES OF PROFESSIONAL CONDUCT

The rules of professional conduct for legal practitioners 2007 (RPC) contains several provisions that address the duty of confidentiality a lawyer owes to their client. See rule 19(1) of the RPC which provides that a lawyer shall not disclose any communication made to him by his client in the course of their professional relationship, nor shall he disclose the contents of any documents belonging to the client without the client's consent, except in situations provided by the rules. This rule emphasizes that the confidentiality of communications between a lawyer and client is sacrosanct, and any breach without the client's express consent could result in sanctions against the lawyer.

SCOPE OF CONFIDENTIALITY

The duty of confidentiality covers both oral and written communications, as well as any documents or information disclosed by the client during the course of legal representation. Confidentiality also extends beyond the duration of the client-lawyer relationship, meaning that even after the professional relationship has ended, the lawyer must continue to respect the confidentiality of information shared during their dealings with the client.

LEGAL PROFESSIONAL PRIVILEGE

Legal professional privilege refers to the right of the client to prevent the disclosure of confidential communications between themselves and their lawyer. This principle is recognized under section 192(1) of the evidence act 2011 which states that no legal practitioner shall, at any time, be permitted to disclose any communication made to him in the course and for the purpose of his employment as a legal practitioner, unless the client consents to such disclosure. This statutory provision reinforces the ethical duty of confidentiality found in the RPC by making it a rule of evidence, preventing lawyers from being compelled to disclose confidential information in court or other proceedings. However, the privilege is not absolute, and there are specific instances where the duty of confidentiality can be overridden. See the case of Tukor v Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 where the court emphasized the importance of lawyer-client confidentiality and upheld the principle that a lawyer cannot disclose information obtained in a professional relationship without the client's consent, except as provided by law and the case of Aiyetan v Nigerian Institute of Oil Palm Research (1987) 3 NWLR (Pt. 59) 48 where the supreme court held that the purpose of legal professional privilege is to protect confidential communications between a client and their legal adviser, and the privilege exists to ensure that clients are free to discuss their cases without fear of disclosure. These exceptions to confidentiality and privilege includes the following:

1. Client's consent: Where the client expressly consents to the disclosure of confidential information, the lawyer may reveal such information. See rule 19(1) of the RPC and section 192(1) of the evidence act.
2. Commission of a crime: Communications between a lawyer and a client that involve the commission of a crime or fraud are not protected by privilege. See section 192(3) of the evidence act which states that if the communication is made for illegal purposes, it does not fall within the privilege. See the case of Akpene v Barclays Bank of Nigeria Ltd (1977) 1 SC 47 where the court recognized that privilege cannot protect a communication made with the intent to commit a crime or fraud.
3. Defence in a suit against the lawyer: If a lawyer is sued by the client, the lawyer may disclose relevant confidential information to defend themselves. See rule 19(3)(a) of the RPC which allows a lawyer to reveal such information to establish a defence in a lawsuit brought by the client.
4. Preventing death or serious bodily harm: In some cases, a lawyer may be justified in disclosing confidential information to prevent a crime likely to result in death or serious bodily harm. See rule 19(3)(c) of the RPC.

WAIVER OF PRIVILEGE

A client can waive the protection of privilege, either explicitly or implicitly. Explicit waiver occurs when the client consents to the lawyer disclosing confidential information. Implicit waiver can occur if the client voluntarily discloses privileged information to a third party, thereby defeating the purpose of the privilege.

SANCTIONS FOR BREACH OF CONFIDENTIALITY

A breach of the duty of confidentiality can lead to serious consequences for the lawyer. See rule 55 of the RPC which provides that a lawyer who breaches the rules of professional conduct may face disciplinary actions from the legal practitioners disciplinary committee (LPDC). Sanctions can range from suspension to disbarment, depending on the severity of the breach.

CONCLUSION

The duty of confidentiality and privilege is central to the legal profession in Nigeria. lawyers must ensure that they maintain the confidentiality of client information, as provided under the RPC and the evidence act, except in very limited circumstances. This duty encourages full disclosure by clients and protects the integrity of the legal system. The recognition of this principle in Nigerian case law and statutes underscores its importance in the practice of law.