Malta: Global Attorney-Client Privilege Guide

Attorney-Client/Solicitor-Client Privilege (ACP)

Is the ACP recognized in your jurisdiction?

Yes.

ACP arises from two particular provisions in the code relating to civil procedure and that relating to criminal procedure. As shall be explained, these provisions establish quite clearly that the information obtained by a lawyer in professional confidence (as qualified below) is privileged and the advocate may not disclose that information or be compelled by the court to do so, without the client's consent.

It is considered that ACP arises where the lawyer is rendering legal services in connection with litigation, but some provisions in the law extend to circumstances where legal services are rendered in connection with non-contentious matters. ¹

The dual recognition of the legal advice privilege and litigation privilege under Maltese law was confirmed by the Malta Chamber of Advocates in guidelines it published on October 1, 2021, entitled 'Legal Professional Privilege – Practice Note for Advocates' ("Privilege Guidelines").

With regard to the litigation privilege, Article 588 of the Malta Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) ("COCP") prohibits advocates from being questioned with respect to any 'circumstance' or 'information' communicated to them by their client 'in professional confidence in reference to the cause'. The word "cause" links ACP arising from this provision to litigation. The only exception is where the client waives such privilege by giving their consent to the disclosure.

Article 642 of the Malta Criminal Code (Chapter 9 of the Laws of Malta) ("Criminal Code") expressly exempts advocates from being 'compellable witnesses' with respect to 'circumstances, knowledge whereof is derived from the professional confidence which the parties themselves shall have placed, in their assistance or advice'. It is worth noting that there is no requirement in this provision for such communication to be connected to litigation.

However, and in the specific case of entry and search warrants, "items subject to legal privilege" (which is excluded from the scope of such warrants) are defined as any communication between the advocate and the client made either: (a) in connection with the giving of legal advice (without it necessarily being connected with litigation) or (b) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.² Documents or records enclosed with such communication are also privileged. However, communication/documents/records 'held with the intention of furthering a criminal purpose' are expressly excluded from legal privilege [as will be discussed below].

It is worth noting that the law specifically refers to "advocate", and therefore, ACP arising from these provisions protects warranted lawyers which are admitted to the Malta bar. Having said that, it is unlikely that a Malta court or tribunal will not recognize ACP arising from the law of another jurisdiction if it protects communication between attorney-client.

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¹  In Robert Hornyold Strickland v. Allied Newspapers Limited et, Court of Appeal (31 January 2019) [Ref. 1136/15] para 20, it was held that legal privilege extends to circumstances where a client communicates with an advocate to obtain legal advice on matters which are not necessarily contentious.

² Criminal Code (Chapter 9 of the Laws of Malta), Articles 350, 355G and 355L.

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 in a civil proceeding? Note: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions' privilege doctrines.

Not applicable. 

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 distinction is made between civil and criminal proceedings. ACP arises with respect to communication made in connection with litigation, whether it is of a civil, commercial or criminal character.

Where the communication is made in a matter which is not connected with litigation, the applicability of ACP depends on whether the client has communicated with the advocate in his capacity as such or in another capacity.

Even where ACP does not apply to communication between advocates and clients, such communication is still considered as a "professional secret" and accordingly governed by a different set of provisions which however do admit compulsion of disclosure to public authorities or to a court or tribunals in limited circumstances (specifically money laundering and other tax-related investigations).³  However, and for the avoidance of doubt, the provisions relating to professional secrets do not apply to communications mentioned above which are governed by Article 588 of the COCP and Article 642 of the Criminal Code.

Apart from being bound by professional secrecy, advocates are also bound to keep the affairs of their clients confidential. In respect of these confidentiality obligations Rule 4 in the Code of Ethics ("Code") issued by the Chamber of Advocates, which reads,

'The duty to keep a client's matters confidential, as opposed to what applies to the duty of professional secrecy, can be overridden in certain exceptional circumstances and shall include those cases (a) in which an advocate is required to disclose confidential information in terms of law; and those cases (b) in which such disclosure is essential for an advocate to defend himself in any proceedings taken against him by or on the complaint of a client or a former client in which event the disclosure shall be limited to what is indispensable for the advocate to defend himself.'

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³  Criminal Code, Article 257; Professional Secrecy Act (Chapter 377 of the Laws of Malta)

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.)

Maltese law does not provide for such a test, and therefore, on the basis of the concept of commercial partnerships (such as limited liability companies) having separate legal personalities, the client would be the corporation itself. There are various cases in which the Malta courts have recognized that the corporation can be the client for the purposes of ACP.⁴

In its Privilege Guidelines, the Chamber of Advocates unequivocally confirmed that the client is the 'corporate entity for whose benefit the advice is sought'. Consequently, the ACP extends to the officers or employees (together with their delegates) within the company structure who are authorized to obtain advice on behalf of the corporate entity. The Chamber of Advocates highlighted the importance of proper authorization by such an entity of its officers or employees to seek and receive legal advice on its behalf.

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⁴ In GBCOM Limited v. MSA Holdings Limited, First Hall Civil Court (6 March 2018) [Ref. 627/2013], it was accepted that communications exchanged between the director of a limited liability company incorporated in Malta and an advocate in contemplation of litigation was privileged. In Boris Arcidiacono Limited v. HSBC Bank Malta plc et, Court of Appeal (29 November 2019) [Ref. 503/2011], it was accepted that the respondent bank was entitled to withhold consent for its in-house legal counsel to be exempt from disclosing a "professional secret".

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?

No distinction is made at law between in-house and outside counsel.⁵ Therefore, the assumption is that both are given similar status regardless of the client relationship.

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⁵ Part Four, Chapter II, Rule 1 of the Chamber of Advocates Code of Ethics clearly provides that: "An advocate in employment is bound by the norms of professional conduct in the same manner as an advocate in private practice".

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Not applicable.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction's bar?

Not applicable.

Is the common interest doctrine recognized in your jurisdiction?

The common interest doctrine is not expressly recognized in Malta.

How is the doctrine articulated in your jurisdiction?

Not applicable.

Must a common interest agreement be in writing?

Not applicable.

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

In Malta, parties bear their respective legal courts, and court fees are generally imposed by the courts on the party cast. Litigation funding is not prohibited, and in principle may be said to be possible even though it is not expressly regulated. However, Maltese law expressly prohibits any agreement or stipulation which may be characterized directly or indirectly as quotae litis.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

This matter has not been decided or considered by the Maltese courts or tribunals, however, ACP should apply to such communications, in particular, if the litigation funders are seen as successors in the title of the client or otherwise agents of the same.

Is the crime-fraud exception recognized in your jurisdiction?

Yes. The Criminal Code expressly excludes items held with the intention of furthering a criminal purpose from its definition of 'items subject to legal privilege'.⁶

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⁶ Criminal Code, Article 350.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

Jurisprudence helps to shed light on the crime-fraud exception. Reference is made to a 1967 judgment in the names of Gaetano Abdilla vs Joseph Cassar Galea. In this case, the Court of Appeal stated that it was perturbed by the invocation of privilege in the context of the potential furtherance of a crime. It reiterated the rule that privilege is of utmost importance when the advocate is acting in their professional capacity. However, the exception is that privilege does not apply for the purpose of committing an illicit or illegal act or omission.

In this respect, prima facie evidence may be required for the court to evaluate the applicability of the crime-fraud exception i.e. that a client has sought advice for a criminal or fraudulent purpose.

Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)

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. The law expressly extends ACP to "any document or records enclosed with or referred to in such communication and made in connection with [...]  ".⁷

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⁷ Criminal Code, Article 350.

What are the elements of the protection in your jurisdiction?

The work product or material must be "enclosed with or referred to" or "made" in connection communications exchanged between a client and an advocate in contemplation of litigation or legal advice.

Other Privileges

Does your jurisdiction recognize an accountant-client privilege?

No. While communications between an account or client are subject to "privilege" and also constitute a "professional secret", their disclosure can be compelled by a court, unlike proper ACP (as explained above).

Does your jurisdiction recognize a mediation privilege?

Malta recognizes a mediation privilege. In terms of Article 27 of the Mediation Act  (Chapter 474 of the Laws of Malta) ("Mediation Act"), information obtained in the context of mediation cannot be disclosed, and the mediator themselves cannot be compelled to disclose information in any proceedings. Disclosure will be allowed if required: (a) 'for overriding considerations of public policy', such as the best interests of children or safeguarding physical and psychological integrity of a person or (b) to implement or enforce the settlement agreement.

Does your jurisdiction recognize a settlement negotiation privilege?

The settlement negotiation privilege is recognized in Malta. The Malta courts and tribunals have, on various occasions, expunged privileged communication and documentation from the record of a case on this basis.⁸

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⁸ Skyfirst Limited vs Sunshine Aviation Limited, First Hall Civil Court (14 February 2018) [Ref. 1060/2015].